Forensic Psychiatry and

Psychology in Europe

A Cross-Border Study Guide

Kris Goethals
Editor

123
Forensic Psychiatry and Psychology
in Europe
Kris Goethals
Editor

Forensic Psychiatry and

Psychology in Europe
A Cross-Border Study Guide
Editor
Kris Goethals
Antwerp University Hospital,
University Forensic Centre (UFC) &
University of Antwerp, Faculty of Medicine
and Health Sciences
Collaborative Antwerp Psychiatric Research
Institute (CAPRI)
Edegem/Wilrijk
Belgium

ISBN 978-3-319-74662-3    ISBN 978-3-319-74664-7 (eBook)

https://doi.org/10.1007/978-3-319-74664-7

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Why I See the Necessity for Such
a Study Guide

It is a pleasure for me to see the publication of the new book Forensic Psychiatry
and Psychology in Europe: A Cross-Border Study Guide, which has been edited by
Prof. Kris Goethals from the University of Antwerp. In this book, the editor brings
together authors from different countries and also from different disciplines that
discuss important issues affecting the sphere of forensic psychiatry regarding their
importance for the field and their consecutive relevance for the education and train-
ing of forensic psychiatrists. As the field of forensic psychiatry is characterized by
a blend of different professions that are involved in and cooperate during the legal
procedures, the treatment, and the rehabilitation of the patients, it is important that
young psychiatrists and psychologists in training are aware of the importance of this
interprofessional interactions and their presence in different countries. Furthermore,
it is dependent on the legislative and judiciary culture of a country in which way it
deals with psychiatrically ill offenders. The interaction of different agencies
involved in the process of dealing with psychiatrically ill offenders (multiagency
working) differs considerably between the European countries. To describe these
different cultures and their manifestations in the systems of forensic psychiatry in
different European countries provides an important basement for the discussion of
advantages and disadvantages of different approaches.
The concept of the book subdivides the contributions into five main categories or
areas that are legal frameworks, forensic services, mandatory skills, education, and
diverse issues.
The legal frameworks relevant to forensic psychiatry are discussed with respect
to the importance that the knowledge of different legal aspects has in the training of
forensic psychiatrists and psychologists in order to be able to exert their profession
in the field of forensic psychiatry. Here, the international aspect gains an ever
increasing importance as, specifically in Europe, legal institutions tend to converge.
Judgements from local courts in exempli gratia the countries of the European Union
(EU) are subject to evaluation by the European superior courts (European Court of
Human Rights). Furthermore, placement/hospitalization and treatment in psychiat-
ric hospitals and prisons are subject to review by the Committee for the Prevention
of Torture (CPT), which is an institution of the Council of Europe that is dedicated
to the surveillance of the regulations that have been fixed in the European Convention
for the Prevention of Torture. Furthermore, the study guide outlines the provision of
forensic services in different countries. From the differences and commonalities of

v
vi Why I See the Necessity for Such a Study Guide

these implementations and their differential effects on criminological outcomes

interesting conclusions can be drawn that are very illustrative for trainees in forensic
psychiatry. Also important is the reflection of skills that are crucial for the work as
forensic psychiatrists. Here, not only language skills are necessary but also a deep
understanding of transcultural problems in psychiatry as well as in transcultural dif-
ferences in moral norms. These latter transcultural aspects gain an increasing impor-
tance not only due to the challenge of the European societies by migration from
poorer countries but also because of the increasing professional migration of physi-
cians that also affects forensic psychiatrists. Aside from such specific questions, it
has also to be discussed what professional requirements are present in different
countries for professionals working in forensic psychiatry.
Training in a medical specialty such as forensic psychiatry on the one hand relies
on theoretical knowledge, which can be obtained from the study of literature and
books such as this study guide. On the other hand medical training also requires
real-life interaction and discussion of the contents that have been theoretically stud-
ied. Naturally, the discussion of these aspects of different systems of forensic psy-
chiatry in different countries cannot succeed sufficiently when discussants from
only one country are present. Rather, such a discussion requires the participation of
discussants from these different cultural backgrounds and forensic psychiatric sys-
tems. In order to provide a training opportunity for young psychiatrists from differ-
ent European countries, the Ghent group has established an international European
summer school for forensic psychiatry. This summer school brings together senior
experts and junior professionals as well as trainees in forensic psychiatry from a
range of European countries. Therefore it is a perfect real-life counterpart of the
present study guide in order to further explore and differentiate the concepts of
forensic psychiatry and the approaches taken in different European countries.
This study guide is a very important contribution to the education of young psy-
chiatrists interested in forensic psychiatry. It provides a collection of important
insights and descriptions of how forensic psychiatry is carried out in several differ-
ent European societies. Moreover, it compares different aspects and allows for a
consideration and evaluation of the effects of the different approaches. This may in
the future contribute to a possible European convergence of systems while fostering
beneficial elements and attenuating more problematic elements.

Kolja Schiltz
Recommendations to the Practice of Teaching,
Training, and Research in Italy

The reform in Italy of treatment for mentally ill offenders led to the closure of
Forensic Hospitals, mainly hospital prisons, at the end of 2016: new facilities, resi-
dences for security measures (REMS), run totally by Mental Health Services, have
since been built. Furthermore, community services are currently taking charge of
the less dangerous patients not guilty by reason of insanity.
Psychiatrists, psychologists, nurses, and rehabilitation workers need to increase
their knowledge of juridical and forensic issues and should receive better training
due to the fact that therapeutic plans for forensic patients are currently very com-
mon in the network of Community Mental Health Services.
At the same time, health workers in prison have the responsibility of identifying
detainees suffering from mental illness as quickly as possible and must not only take
care of them but also involve the community services in their future treatment.
This complex change in Italy will transform the organization of the mental health
network without changing the “non-institutional” principle that led to the closure of
the psychiatric hospitals in 1978 (Law 180/78).
The personnel working in mental health, and in the juridical system, including
forensic psychiatrists and psychologists, judges, and any other parties who are
involved in the pathways of treatment and security needs, will be trained therefore
to have an active participation in the reform.
An initial training of health workers is currently underway, but it must be rein-
forced and become permanent. The main items to stress with the aim of improving
or introducing skills regarding treatment and assessment are, in my opinion:

knowledge of the legal framework

knowledge of the mental health network of facilities
a common language between juridical and medical systems for defining the
actions to be carried out
to introduce the methodology of risk assessment of violence
rehabilitation and recovery interventions inside REMS and in community
facilities
therapeutic techniques for patients with violent behaviour

It is necessary to develop a systematic and national work of research that would

be able to follow the changes inside the system.

vii
viii Recommendations to the Practice of Teaching, Training, and Research in Italy

REMS and the network of the mental health services currently look very differ-
ent and this can radically change the care pathways of the people who are sentenced
to security measures. The judges can adopt different decisions according to the level
of security that the REMS, or the community facilities, can guarantee.
University faculties, the National Health System, and the judicial system should
therefore promote a common plan of research that includes monitoring of the num-
ber of patients on security measures, their relapse or recidivism, the quality of the
treatment they receive, and any other item involved in this field.
The book by Goethals, and the co-authors, is a helpful instrument that describes
methodology and the entire process aimed at carrying out a survey of the system and
the implementation of a teaching and training programme. In the book there is a
contribution of an Italian colleague, who is working in a REMS of the Veneto
Region, and who shared with me his experience in the COST (Cooperation in
Science and Technology) Action IS1302 “Towards an European research frame-
work on forensic psychiatric care”. The Italian Reform is undoubtedly a courageous
experience that can demonstrate that it is possible to create a care pathway for men-
tally ill offenders within the network of a community health system.
I sincerely recommend reading it and paying attention to the suggestions in the
book and the network of European experts.

Franco Scarpa
Mental Health Services USL Toscana Centro
Pistoia, Italy
Contents

Part I Legal Frameworks

1 Adversarial Versus Inquisitorial Systems of Trial and 
Investigation in Criminal Procedure������������������������������������������������������   3
John Gunn and Paul Mevis
2 National Laws and Their History����������������������������������������������������������  19
Vicenç Tort-Herrando, Nicoleta Tataru, and
Fernando-Luis Barrios-Flores
3 Legal Approaches to Criminal Responsibility of Mentally
Disordered Offenders in Europe������������������������������������������������������������  31
Michiel van der Wolf and Hjalmar van Marle
4 New Developments in Legal Systems and Their Impact
on Forensic Psychiatry����������������������������������������������������������������������������  45
Hans-Jörg Albrecht
5 The European Impact on National Forensic Psychiatry����������������������  71
Anton van Kalmthout and Paul Mevis

Part II Service Provision and Frameworks

6 Mapping Offender-Patient Pathways����������������������������������������������������  91
Bradley Hillier, Christopher Lambourne, and Pamela Taylor
7 Organization and Funding of Forensic Psychiatric Facilities
Across Europe������������������������������������������������������������������������������������������  113
Ellen van Lier and Vicenç Tort-Herrando

Part III Specific Skills

8 Challenging Language Barriers�������������������������������������������������������������  131
Esperanza Gómez-Durán and Roland Jones
9 Multi-agency Working ����������������������������������������������������������������������������  143
Lindsay Thomson, Kris Goethals, Joachim Nitschke, and
Norbert Nedopil

ix
x Contents

10 The Roles of Forensic Psychiatrists and Psychologists:

Professional Experts, Service Providers, Therapists, or
All Things for All People? ����������������������������������������������������������������������  155
Thierry Pham and Pamela Taylor
11 Forensic Psychotherapy in Forensic Mental Health ����������������������������  165
Frans Koenraadt, Gill McGauley✠, and Jochem Willemsen

Part IV Teaching and Training

12 Teaching Forensic Psychiatry and Psychology in Europe��������������������  183
Sheila Howitt and Lindsay Thomson
13 Specialist Training in Forensic Psychiatry in Europe��������������������������  199
Norbert Nedopil and Pamela Taylor
14 Impact of Service Organisation on Teaching and Training ����������������  211
Harry Kennedy, Luca Castelletti, and Owen O’Sullivan
15 Evidence-Based Treatment in Forensic Settings ����������������������������������  239
Norbert Schalast, Conni Lebbing, and Birgit Völlm
16 A European Perspective on Risk Assessment Tools������������������������������  249
Michiel de Vries Robbé and Vivienne de Vogel
17 Prioritizing Research in Forensic Psychiatry:
A European Perspective��������������������������������������������������������������������������  267
Florence Thibaut and Thierry Pham

Part V Capita Selecta

18 A (Possible) Role for International Associations in the Development
of Forensic Psychiatry Education and Training������������������������������������  279
Marc Hermans and Florence Thibaut
19 Deinstitutionalization Versus Transinstitutionalization ����������������������  293
Thomas Marquant and Francisco Torres-Gonzalez
20 Ethical Issues in Forensic Psychiatry ����������������������������������������������������  305
Paul Cosyns
21 Pathways to Radicalisation and Violent Extremism����������������������������  315
Thomas Marquant and Norbert Nedopil
22 Recommendations to the Practice of National Teaching,
Training and Research����������������������������������������������������������������������������  333
Kris Goethals
Index������������������������������������������������������������������������������������������������������������������  343
About the Author

Kris Goethals  (1969) is a forensic psychiatrist/psychotherapist and director of the

University Forensic Centre (UFC) at the Antwerp University Hospital. Besides this
position, he is a professor of forensic psychiatry at the Faculty of Medicine and
Health Sciences, Collaborative Antwerp Psychiatric Research Institute (CAPRI) of
the University of Antwerp, Belgium. He also works in a private practice. He has a
wide clinical experience in forensic psychiatry and psychology in Belgium and the
Netherland.

xi
 Part I
Legal Frameworks
Adversarial Versus Inquisitorial Systems
of Trial and Investigation in Criminal 1
Procedure

John Gunn and Paul Mevis

1.1  undamental Differences in Approach to Protect

F
the Same Values

Common law and civil law are terms used to distinguish two distinct legal systems
and approaches to law. The use of the term ‘common law’ in this context refers to
all those legal systems which have adopted the historic English legal system.
Foremost among these is the United States, but many other British Commonwealth
and former Commonwealth countries retain a common law system. The term ‘civil
law’ refers to those other jurisdictions which have adopted the European inquisito-
rial system of law derived essentially from ancient Roman law, but owing much to
the Germanic tradition and the French tradition of codification of systemised, writ-
ten (substantial and procedural) law is based on the ideals of the French Revolution.
Under the inquisitorial system or civil law approach, (we use the terms interchange-
ably), there are many differences between jurisdictions, for instance, in whether
laymen are involved or not. There are also differences in the possibilities for and
conditions under which a trial in absentia is possible. The trial judge may allow
hearsay evidence in some jurisdictions. There is not ‘a’ civil law system, but the
approach differs from the common law.
In this essay we will concentrate upon criminal law.
Both systems aim to find ‘the truth’ (i.e. an acceptable and reliable truth) (Brants
[1], p. 1074) about a criminal offence in a ‘fair’ trial, leading to the conviction of
those who committed a crime and the implementation of a ‘just’ and ‘fair’ sanction.

J. Gunn (*)
King’s College London, London, UK
P. Mevis
Department of Criminal Law and Criminal Procedure, Erasmus University Rotterdam,
Rotterdam, The Netherlands
e-mail: mevis@law.eur.nl

© Springer International Publishing AG, part of Springer Nature 2018 3

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_1
4 J. Gunn and P. Mevis

Moreover, both systems aim to avoid convicting the innocent. That makes a com-
parative study relevant.
In Europe, almost all countries in both systems have signed the European
Convention on Human Rights, a treaty signed within the framework of the Council
of Europe. Both systems acknowledge the right of every citizen to a fair trial. We are
not trying to discern whether one system is fairer or better than the other. But we
recognise that both systems are imperfect. For example, in Great Britain, there have
been some notorious miscarriages of justice such as the wrongful conviction of
alleged Irish terrorists which led to the setting up of the Royal Commission on
Criminal Justice [2]. The Netherlands has also identified similar severe miscarriages
of justice. In one recent case, the initial trial relied on the confession of the accused,
but in retrospect it was decided that his mental situation made him confess (see
Hoge Raad 2014, 2015).

1.2  hree Key Issues: Responsibility of the Judge,

T
the Position of the Accused and the Influence
of the Pre-trial Investigation

An illuminating description of the difference between the adversarial system and

the inquisitorial system is given in The Judge by Patrick Devlin [3], a distinguished
English academic jurist. He says that:
the essential difference between the adversarial system and the inquisitorial system … is
apparent from their names. The one is a trial of strength and the other is an enquiry. The ques-
tion in the first is: are the shoulders of the party upon which is laid the burden of proof, the
plaintiff or the prosecution as the case may be, strong enough to carry and discharge it? In the
second the question is: what is the truth of the matter? In the first the judge or jury arbiters;
they do not pose questions and seek answers: they weigh such material as is put before them,
but they have no responsibility for seeing that it is complete. In the second the judge is in
charge of the enquiry from the start: he will of course permit the parties to make out their cases
and may rely on them to do so, but it is for him to say what it is that he wants to know.

A further description was given by the British Royal Commission on Criminal

Justice which defined the adversarial system as a system which has the judge as an
umpire who leaves the presentation of the case to the parties (prosecution and
defence) on each side. They separately prepare their case and call, examine and
cross-examine their witnesses and experts. In contrast to inquisitorial systems, the
judge plays a major role in the presentation of the evidence at trial. Here the judge
calls and examines the defendant and the witnesses and experts, while the lawyers
for the prosecution and defence ask supplementary questions. It is the judge’s
responsibility to arrive at the ‘correct’ outcome of the case. It is his or her responsi-
bility to examine the case laid out by the prosecution. Codified rules of procedure
may say that the judge has to allow parties to hear witnesses, rather than allowing
the accused to question the witness. The ‘judge’ has to guarantee the integrity of the
decision, the procedure and the pre-trial inquiry of a criminal case at trial. So, in the
inquisitorial system, the court is not only responsible for the right decision but also
1  Adversarial Versus Inquisitorial Systems of Trial and Investigation 5

for the investigation leading to the decision. The ‘judge’ may be a professional
judge or layman (or a combination) or a jury.
In a common law system, ‘truth’ is believed to be found by a ‘choc des opinions’
(battle of opinions) between equal parties before an independent umpire, i.e. a jury
or a magistrate. The ‘battle’ concentrates on the facts and the opinions presented by
the ‘parties’, unlike the judicial enquiry of the inquisitorial system where the accused
and the prosecution don’t bear any ‘burden of proof’ as such. They are only invited
to make a contribution by the trial judge. They are not in a battle with each other.
The influence and structural position of the pre-trial investigation and its influ-
ence on the character of the trial differ significantly between the systems. Under the
civil law, state authorities have many intrusive powers of investigation. These pow-
ers are based on written, democratically decided laws. In some jurisdictions, the
judge takes part in the pre-trial investigation and can determine that, for instance,
illegally obtained or unreliable evidence is not admissible,1 and the state authorities
responsible for the investigation also have to protect the rights of the accused. This
double duty imposed on the state is probably why Packer’s dichotomy due process-­
crime control2 never seems to work very well in inquisitorial systems (see Brants
[1], p. 1075); the decision to prosecute (and for what) is left to a public law official,
usually the public prosecutor, sometimes a judge. The accusation is presented as a
case that is to be tested by the judge, with the results of the pre-trial investigation in
a dossier. The role of the trial procedure is not, therefore, as in the adversarial sys-
tem, to produce all the evidence at the trial; the trial is a test, by the judge, of the
accuracy of the prosecutor’s case. The role of the defence is limited to casting doubt
on the prosecutor’s case, for example, persuading the judge of the necessity to call
a witness to the trial, instead of relying de auditu on his or her statement during the
pre-trial investigation.3 ‘De auditu’ (hearsay) evidence is not forbidden in the civil
law system. It is allowed as long as the judge sees no reason to hear the witness as
part as his or her task to find the truth.
If the accused is extra vulnerable, for instance, in cases of mental disturbance, it
is for the judge – and for the other authorities during the pre-trial investigation – to
‘compensate’ for this in the way the trial or the investigation is organised. There are
very few cases in the inquisitorial system in which the prosecution is stopped
because of ‘unfitness to stand trial’. This is because it is the task of the judge to
protect the accused from his or her weaknesses. For example, the judge may repre-
sent the accused against the prosecutor. Also, she/he has to be extra careful in evalu-
ating evidence when the accused is not able to give his or her view on the facts. In a
comparative study between Canada and the Netherlands, the ‘umbrella-protection’
of the judge was found to produce greater fairness and effectiveness in the prosecu-
tion of a mentally disordered defendant than in the adversarial system [4].

1
 Exclusion of illegally obtained evidence is, in the view of the European Court on Human Rights,
not under all circumstances part of Article 6 (fair trial) guarantee of the convention.
2
 Packer constructed two models, the crime control model and the due process model, to represent
the two competing systems of values operating within criminal justice [17].
3
 De auditu is the testimony of a witness obtained from third parties.
6 J. Gunn and P. Mevis

1.3 Convergence of Systems

The usual distinction made between the two systems is that the common law system
tends to be case centred and hence judge centred, allowing scope for a discretionary,
pragmatic approach, whereas the civil law system tends to be a codified body of
general abstract principles which controls the exercise of judicial discretion. In real-
ity, both of these views are extremes with the former overemphasising the extent to
which the common law judge has discretion and the latter underestimating the
extent to which continental judges have the power to exercise judicial discretion.
It is worth noting that the European Court of Human Rights, based on the
European Convention on Human Rights, was established, initially, on civil law prin-
ciples, but is increasingly recognising the benefits of establishing a body of case
law. The court wants to see the rights of an accused being effectively protected in
every system of criminal procedure and in every separate case. There is a clear
‘common law’ approach, for example, when the court underlines the right of the
accused to question witnesses himself, preferably during the trial, as the best way to
challenge the evidence, instead of relying on the professional opinion of the judge
on the reliability of the statement of the witness. Another example is the recent
jurisprudence on police interrogation. Instead of trusting the police to uphold the
rights of the suspected citizen and to make a ‘true’ report of the interrogation, the
Strasburg Court has underlined the right of the suspected person to have his or her
lawyer present during police interrogation as a better means of preventing miscar-
riages of justice. The court went so far as to rule that ‘the rights of the accused will
in principle be irretrievably prejudiced when incriminating statements made during
police interrogation without access to a lawyer are used for a conviction (ECHR
2008).’ (for an analysis see Schwikkard [5]). The Dutch inquisitorial oriented police
were rather upset by this ruling.
Separate from the Council of Europe, the EU recommendation on procedural
safeguards for vulnerable persons4 calls for several instruments to protect the
accused in a criminal procedure, without any distinction between or differentiation
in systems of (Common or Civil) law. This and other EU documents are discussed
in Chap. 5 of this book.

1.4 Historical Roots

1.4.1 History of Roots of the Common Law: Adversarial System

A good guide to the history of the development of the adversarial system is the book
by Potter [6], and this can usefully be supplemented by the biography of Sir William
Garrow by Hostetler and Braby [7].

4
 Commission recommendation of 27 November 2013 on procedural safeguards for vulnerable
persons suspected or accused in criminal proceedings (2013/C 378/02).
1  Adversarial Versus Inquisitorial Systems of Trial and Investigation 7

How have two different systems developed within one continent which has much
common history? After all, 1000 years ago, Britain and France were united, and one
might have expected that their systems of justice would reflect this close connec-
tion. Well they do to some extent; both systems have some roots in Roman law.
After the collapse of the Roman Empire, the written law seems to have disappeared
in Britain for several centuries; grievances, feuds and other disputes were settled
privately, often by armed conflict. The Anglo-Saxons reverted to codification, akin
to Roman codification, at the end of the sixth century. The code set out a list of
grievances and the compensation which they merited. Not only did everybody and
everything have financial worth in this code, but every part of the anatomy did also,
e.g. the loss of a big toe costs 10 shillings.
The disputes were administered by the courts of the hundreds5 unless the alleged
offences were quite serious when they were referred up to the county or shire courts.
The shire courts were overseen by a representative of the king or a shire reeve (sher-
iff). The basis of the trial was the oath. To declare his or her innocence, the accused
had to swear an oath and get people to come and testify to his or her honesty.
Serious cases required more people to testify to his or her honesty, for example, a
complaint of arson required 36 people to testify to the accused’s honesty. This was
potentially open to abuse, but most people were religious, and it was believed that if
one made a false oath then one was liable to eternal damnation. At first there was no
distinction between civil and criminal laws.
By the tenth century, the codes were more complex and also prescribed physical
punishments including death for some offences. For example, anyone caught forg-
ing the common currency of England was to have his hand struck off. This was the
beginning of the doctrine that any serious offence is an offence against the Crown.
In common with the rest of Europe, the later Anglo-Saxons devised a new system of
proof in the trial, the so-called ordeal. This was a way of inviting God into the trial.
The ordeal was dangerous and painful but was not a punishment; it was a mode of
proof. The idea was that God would come to the aid of the innocent, so if you failed
the ordeal, you were then punished. The ordeals were supervised by the clergy.
There were two main kinds of ordeal at the time, the first was being made to hold a
red-hot poker; the hand was then bandaged, and after 3 days it was inspected to see
if it had healed. If it had festered, you were guilty. The second kind of ordeal was by
water; you were lowered into a pool of sanctified holy water; if you sank you were
innocent, and if you floated it implied that the pure holy water had rejected you, and
you were therefore guilty. Trial by ordeal was used for some centuries, although it
was only used in cases which could not be settled in other ways, i.e. if there was no
factual proof, for example, recovered stolen goods or appropriate marks on a per-
son’s body. These methods of trial were used throughout Europe. About half of
those who subjected to trial by ordeal were found to be innocent.
When the Normans invaded England in 1066, they decided to keep the courts of
the hundreds and shires, but they added a new system of ordeal; this was ordeal by
combat. The winner is being declared the innocent. Most of the offences being tried

 Probably an area of land containing a 100 dwellings.

5
8 J. Gunn and P. Mevis

this way were capital offences, so the victor might as well finish off the loser at the
end of a battle. If he didn’t, the loser would be brought before the bishop or the
sheriff to be sentenced to, for example, death or blinding or castration.
All was well with the Norman system until Stephen usurped the English throne,
and civil war ensued, and the law broke down. Henry II came to the throne in 1154
aged 21. He sorted out the anarchy by strict imposition of the king’s law and indeed
is sometimes regarded as the father of the English common law. In 1166 he estab-
lished a system of travelling justices who were significant friends or appointees of
the king personally. These justices found that there were wide discrepancies in the
efficiency with which the laws were administered in different counties (shires), and
so the king sets standards which had to be followed, and he invoked the support of
ordinary people by establishing juries of presentment. The jurors of presentment
were to present to the courts all the suspected offenders in an area; they did this
under oath.
The juries of presentment were 11 or 12 men from the hundreds and perhaps
three or four selected more locally who had the responsibility of bringing anyone
who was suspected of an offence to trial. If someone was suspected of stealing cat-
tle, for example, they would be reported to the jury of presentment who would then
try to ascertain the facts of the case as best they could and decide whether to prog-
ress the case further or not. If they decided that the accused person was likely to be
guilty, they would pass them on to be submitted to one of the ordeals. They had
considerable power however to filter out people for whom they thought the case was
weak. This is a forerunner to the grand jury which is still used in the United States.
A good account, using historical records, of the jury of presentment before 1215 is
given by Groot [8] who points out that not only did the jurors investigate the facts
of the actus reus (whether the early alleged sequence of events took place and the
accused was implicated), but also they enquired into mens rea, i.e. they decided
whether or not an action was deliberate.
A central court was established in Westminster; it was not an appeal court or a
higher court, but it was the court from which the justices would set out on their
journeys around the country and where the king could make his wishes known. It
was a place where judges could meet and discuss cases and establish general prin-
ciples which they could then take out into the shires. They wrote down some of their
cases, and the first books of English law began to appear. This meant that the judges
were establishing the basis of common law which is ‘precedent’, i.e. law is consis-
tent and based on previous judgements.
The year 1215 was a landmark year in English law. Henry’s son John embarked
on disastrous military adventures in France and lost the nation its wealth. He
demanded taxes from a nobility who hated him, and he seized lands arbitrarily. The
barons rose against him and forced him to sign a Great Charter (Magna Carta)
which outlawed arbitrary imprisonment and decreed that no one should be victim-
ised except by lawful judgement of his peers or by the law of the land. It was a
ground-breaking recognition that the English people had rights. The Charter was
used in the English Civil War to curb the power of King Charles I. Later it formed
the basis of the Constitution of the United States.
1  Adversarial Versus Inquisitorial Systems of Trial and Investigation 9

Trials by ordeal were eventually banned by Pope Innocent III who decreed
that the judgement of God could not be manipulated by the judgement of men.
This meant that the church withdrew from trial by ordeal, and the continent of
Europe reverted to methods of proof that had been established by the Romans.
Confessions were extracted from those accused, by torture if necessary. England
chose to introduce instead trial by jury. The first known English jury trial took
place in 1220. Juries in the thirteenth century were a development from the
juries of presentment who were now expected to decide the verdict. They did not
come to their verdict by weighing evidence but by using their own local knowl-
edge. Trial by jury became one of the defining characteristics of English com-
mon law.
In Tudor England the common law became corrupted; juries were bribed, and
local nobleman largely ran the judges in the courts. To counteract this corruption,
the king developed a separate system of law which was held in the Star Chamber
(literally a chamber with stars on the ceiling) without juries and thus not subject
to bribery. The aristocracy in particular could be tried in the Star Chamber.
Mythology tells us that the Star Chamber was tyrannical and frequently resorted
to torture. In practice the Chamber was an inquisitorial system without a jury,
used on the one hand to express the king’s mercy, but on the other hand to deal
with direct threats to the king, for example, the gunpowder plot to blow up
Parliament. Torture was used, however, in unusual circumstances by virtue of
powers deriving from the doctrine of sovereign immunity from legal action. This
doctrine was totally repudiated by the common law and thus provided a long-
running source of tension between the Crown and Parliamentary lawyers. Things
came to a head in the reign of Charles I. The high-handed king forced disastrous
wars and asked Parliament to raise the necessary funds. When this was refused, he
disbanded Parliament and raised money by extortion from wealthy landowners. If
a nobleman refused to pay up, he was arraigned before the Star Chamber. Arrested
knights appealed to the common law for release from prison, but the king said he
had unlimited powers because he ruled by divine right, and he dismissed
Parliament.
However he had to recall Parliament to demand more money. Edward Coke
devised a scheme whereby money was to be granted to the king so long as he signed
a document giving full rights to the common people. The document is called the
Petition of Right and may be second only in importance in English law to Magna
Carta. Nobody could be compelled to pay taxes without parliamentary authority,
and nobody could be imprisoned without cause. The latter is the principle of habeas
corpus.
As soon as he had secured sufficient cash, King Charles I closed down Parliament
again. He ruled without Parliament for over a decade until he fought an unsuccess-
ful war against the Scots. In 1640 he was again forced to recall Parliament for more
money. Parliament immediately made torture warrants, which the king had been
using, illegally. In 1641 Parliament forced the king to disband the Star Chamber and
its inquisitorial system. Neither torture nor the Star Chamber system has ever been
re-enacted.
10 J. Gunn and P. Mevis

The English Civil War between King Charles I and Parliament broke out in
1642. The king was beaten but refused to submit to the will of Parliament in the
slightest degree, and so he was executed. The ruler of the victorious Parliamentary
army Oliver Cromwell also dismissed Parliament and in some ways behaved
like his predecessor, for example, locking up people without due cause.
Parliament regained the upper hand when Cromwell died, and the monarchy was
restored.
Barristers have existed in England since the thirteenth century, yet for five centu-
ries, prisoners on indictment for treason and felony were not permitted to have
counsel appear for them, even though the sentence for these offences was death. The
reason for this was that in English criminal law, indictments of felony were always
taken in the name of the monarch, and it was considered to be lèse-majesté for those
indicted to be allowed to counsel against the monarch. Instead, in the trial the
accused was allowed, indeed encouraged, to speak to the charges and to the evi-
dence adduced against him, a system of trial they called ‘the accused speaks’. The
logic of the rule was to pressure the accused to speak in his/her own defence. The
accused was regarded as an important source of information, and the jury was
expected to judge the defendant’s veracity and character by his/her performance in
court. As Langbein points out, the judges believed that allowing the defendant to
instruct counsel to speak for him/her would impair the jury’s ability to weigh up the
defendant for themselves.
The first breach in this barrier occurred after King James II had been ousted by
the Dutch invasion of 1688  in the ‘Glorious Revolution’. The new regime gave
Parliament more power, and it introduced a Bill of Rights in 1689. The Bill estab-
lished the principles of frequent parliaments, free elections and freedom of speech
within Parliament (parliamentary privilege). It also included no right of taxation
without Parliament’s agreement, freedom from government interference and the
right of petition and just treatment of people by courts. This provided for the right
to trial by jury, the outlawing of excessive bail surety and excessive fines, as well as
cruel and unusual punishments.
However, prisoners were still at a great disadvantage because the government
sponsored a bounty system giving rewards to citizens who reported thieves. In some
cases, when several thieves were caught, they would give evidence against each
other in order to receive rewards and save their own necks. Judges thus came to
believe that the scales were weighted too heavily against prisoners charged with the
multitude of capital offences. As a consequence, from the 1730s, and without legis-
lation, a few of them allowed counsel to appear for defendants and cross-examine
prosecution witnesses: but barristers were still not permitted to examine their clients
in court and were largely limited to cross examination. In theory this allowed the
‘accused speaks’ principle to continue. Nevertheless, in spite of this limitation, by
skilled cross-examination lawyers could capture the courtroom and reduce the pre-
viously active role of the judge and jury who, respectively, became umpire and fact-
finders. In this development a crucial role was played by William Garrow who
appeared in over 1000 cases at the Old Bailey and established an aggressive and
personal style of questioning prosecutors and their witnesses. This secured an
1  Adversarial Versus Inquisitorial Systems of Trial and Investigation 11

adversarial trial and also helped lead to the introduction of rules of evidence, such
as the presumption of innocence, the ‘best evidence rule’ and a complex hearsay
rule all of which were designed to give new rights to prisoners.
With counsel available to cross-examine prosecution witnesses, to examine
defence witnesses, to raise evidentiary objections and to insist on the prosecution
burden of production of proof, an effective defence no longer require the participa-
tion of the accused, so by the 1780s, the counsel had effectively silenced their cli-
ents. Trial became what it has remained, a proceeding whose primary purpose is to
provide defence counsel with an opportunity to test the prosecution case. Adversarial
procedure presupposed that truth would somehow emerge when no one was in
charge of seeking it. Truth was a by-product [9].

1.4.2 History and Roots of the Civil Law: Inquisitorial System

The roots of the continental civil law system date back to the twelfth century. Before
that, as in the common law countries, there was no distinction between civil and
criminal law cases. Accusation of another person in a more or less formal procedure
was possible. The accusation and the evidence were presented there. The accused
(not a suspect) could purify himself from the indictment. The judge’s main function
was to guard the procedure and to apply the law. But from the twelfth century, the
procédure extraordinaire (originally for treason trials), which was secret and could
include torture, was developed. More and more of this procedure was used to try
those alleged to have offended the sovereign, partly because of problems with the
ordinary process which was liable to abuse and corruption and used severe and
unjust punishments as well as the ordeal as a mode of proof. Although the latter, as
we have seen above, was forbidden by the Catholic Church, the influence of this
Church by prosecuting heretics contributed to the further development of the inquis-
itorial system in criminal law. The criminal process began not with an accusation
but with a suspicion; the authorities had to prove a case against the citizen in a pro-
cedure before a judge. That meant an important shift in the burden of proof [10].
Thus civil law has its roots in a public policy approach relating to the rising power
of the government.
The inquisitorial system kept its main characteristics as a criminal law procedure
after the Enlightenment and the French Revolution, but it was adjusted. Public law
notions to protect the citizen against the powers of government and against arbitrari-
ness were added. The systematic codification of the law emerged, fundamental
rights to protect privacy were introduced, home and physical integrity were made
constitutional rights (e.g. by banning the use of torture) that could only be breached
by democratic written law, for instance, in the law on criminal procedure. These
adjustments added a constitutional framework around the criminal procedure.6 But
not all civil law jurisdictions accept that criminal process should protect against

6
 The presumption of innocence in criminal cases is part of the French ‘Déclaration des droits de
l’homme’ et du citoyen’ from 1789.
12 J. Gunn and P. Mevis

breaches of constitutional provisions. In fact, the right to a fair trial, with its sub-
rights, such as the presumption of innocence, in criminal cases is not codified in all
civil law written constitutions. However, the situation changed after the fall of the
Iron Curtain. Countries in Middle and Eastern Europe became member states of the
Council of Europe and thus signed the European Convention on Human Rights,
with its right to a fair trial in Article 6. They started to build up systems of constitu-
tional rights and procedures on that basis. This has been difficult for countries using
a more traditional, inquisitorial system of criminal procedure in which the right to a
fair trial is supposed to be protected by the professional authorities behaving prop-
erly. It is not surprising that the European Court of Human Rights (ECHR) does
often find breaches of the Convention. This is another example of two types of
criminal procedure converging.

1.4.2.1 The Confession as a Gold Standard

One common factor in both the adversarial system and the inquisitorial systems is
that the confession is still the gold standard for most prosecutors. At one level it is
easy to see why if someone says ‘yes I took the bottle of whiskey from the super-
market and deliberately left without paying for it’, the procedure for dealing with
such a person is simple and relatively inexpensive. However, most confessions are
not like this, and criminals may deny responsibility in many ingenious ways. In a
modern world, this means that the prosecuting investigation has to find corrobora-
tive evidence which places the criminal at the scene of the crime and is perhaps
backed up by witnesses. All are very expensive and difficult to provide. It is very
tempting therefore to resort, not to the physical torture of the past, but to psycho-
logical duress to try and get someone who is strongly believed to be guilty to say so.
As with torture confessions in the past, this is a flawed process and produces the
wrong answer quite frequently. A pioneering Icelandic/British psychologist Gisli
Gudjonsson has developed techniques for showing how unreliable a confession
obtained under duress can be [11]. Many countries have now determined that police
interviews should be conducted formally and transparently recorded. Even then
confessional evidence is probably not good enough in some cases; in many inquisi-
torial systems, it is forbidden to declare an accusation proved by a confession alone.
Britain had a spate of wrongful convictions following a series appalling atrocities
carried out by the Irish Republican Army, a terrorist organisation, in the 1970s. The
convictions were based on flawed confessions and flawed forensic science evidence.
A Royal Commission recommended changes to the ways in which the police collect
evidence, but an attitudinal sea change in the English legal system is needed if it is
to get away from the notion that the police know best. The Netherlands has stuck to
the notion that it is best to trust in the professional integrity of the police officer.
Even so some cases have led to a rule that the interrogation should be audiotaped.
The ECHR has introduced the right of the accused to have a lawyer present during
police interrogation, and the European Union has said that this must be implemented
by 2017 (see Ogorodova and Spronken [12] and Mevis and Verbaan [13]). This is
another example of the trend towards the harmonisation of procedural law across
Europe.
1  Adversarial Versus Inquisitorial Systems of Trial and Investigation 13

1.4.2.2 Psychiatric Evidence and Exclusion from Criminal Liability

Fortunately for psychiatrists, psychiatric evidence is rarely called to attest to the
facts of a case. It can be, in strange situations where, for example, a defendant fab-
ricates a story, but usually the facts are determined by other means. The facts may
be a burglary, an assault even a murder. The psychiatrist is then asked for an opinion
on the mental capacity of the offender.
The general public and therefore lawyers put a great deal of emphasis on the
question of blameworthiness or ‘responsibility’ in any court setting. People
wish to know whether a damaging act was deliberate i.e. intended, or accidental.
An apparently deliberate act can be excused to some extent by immaturity, lack
of comprehension or mental disorder. These excuses are ancient, vague and
capricious. Psychiatrists may have something to say about these matters, and
indeed they can describe, to some extent, an individual’s mental functioning. In
Britain and in the Netherlands, however, it is clear that the psychiatrist cannot
usurp the function of the court and decide whether someone is ‘responsible’ for
a criminal act or not. Judges may ask them for an opinion on this central issue
from time to time, but the jury or the judge (GB and the Netherlands, respec-
tively) has the last word.
When the issue is ‘insanity’, a legal concept which doesn’t map very easily on to
medical concepts the adversarial system, by and large, sticks with the McNaughton
rules which were developed in the first half of the nineteenth century to explain to
an outraged public how it was that a man who tried to kill the Prime Minister was
found not guilty because of his mental health (see West and Walk [14]). Politicians
demanded that the judges explain themselves and come up with an acceptable defi-
nition of insanity. They decided that:

Every man is to be presumed to be sane, and to possess a sufficient degree of reason to be

responsible for his crimes, until the contrary be proved to their satisfaction; and that to
establish a defence on the ground of insanity, it must be clearly proved that, at the time of
the committing of the act, the party accused was labouring under such a defect of reason,
from disease of the mind, as not to know the nature and quality of the act he was doing; or,
if he did know it, that he did not know he was doing what was wrong.

Thus delusions are no excuse if the accused knew, at the time of committing the
crime, that she/he was acting contrary to the law.
In Britain, it is so difficult for an accused to convince the jury of this misfor-
tune that the defence is rarely used. A more usual plea is ‘diminished responsibil-
ity’ in murder trials where the defence argues that the charge should be reduced to
manslaughter because of an abnormal mental state at the time of the killing. But
this also rarely succeeds, as psychiatric mitigation is not popular with juries. The
bald truth is that most mentally abnormal offenders who commit serious crimes
go to prison with its inadequate psychiatric services rather than to a secure
hospital.
The difficulty of the plea in the Netherlands is reflected in the question as to
whether there might be a lack of evidence to prove that the accused acted with
intent. ‘Intent’ is a substantial part of the definition of almost all serious crimes. The
14 J. Gunn and P. Mevis

plea of lack of evidence of intent7 based on a lack of mental capacity is, in the ruling
of the Dutch Supreme (Criminal) Court, only acceptable if the accused at the time
of the crime lacked any sense or notion of the range and possible consequences of
his/her act.
McCauley [15] and Simon and Ahn-Redding [16] give a comparative analysis of
the different means of different concepts of insanity in the civil law systems.
McCauley begins with what he calls the psychopathological approach which he
says exists in Finland, Norway, Greece and Spain. Such an approach reduces the
issue of insanity to a diagnosis of mental illness or mental deficiency. The guiding
question is: does the accused suffer from a clinically diagnosed mental illness or
from mental deficiency when he did the act that forms the basis of the charge against
him? McCauley says that the principal criticism of this system is that it trades on the
essentially fluid concept of mental illness which is too vague to satisfy the constitu-
tional requirements of legality yet too wide to secure the preventive aims of the
criminal law. Looking at Spain, he says that in practice, the Spanish courts have all
but abandoned the psychopathological approach in favour of a mixed approach,
combining the psychiatric diagnosis with an assessment of the impact of the mental
disorder on the accused’s reasoning powers.
The psychological approach is practised in France, Belgium and the Netherlands.
The approach is in two stages. The first stage is concerned with the question of
whether or not the accused is suffering from a serious mental illness, mental illness
being defined by codified criteria and not by psychiatric classifications, so insanity
is not equated with psychiatric diagnosis. The second stage is to decide whether the
mental disorder prevented the accused from understanding the significance of his or
her actions or from acting in accordance with such understanding. Stage two was
designed to take account of the fact that serious physical psychiatric illness can
profoundly alter the accused’s capacity to act rationally without impairing his or her
freedom of choice. These countries import the concept of démence8 from the code
Napoleon, for example, the Belgian penal code allows the insanity defence to any-
one who was in a state of démence at the time of the act or who committed the act
under the influence of an impulse she/he was unable to resist. To reiterate démence
does not denote a particular psychiatric illness or diagnosis the central issue may be
whether the mental condition has undermined his or her autonomy as a moral agent.
As McCauley says ‘not surprisingly, this formula has not been easy to apply, as its
effect has been to replace one set of contentious ideas (the categories of clinical
psychiatry) with another (the philosophical concepts of personal autonomy and
moral agency)’. The principal difficulty has been to give concrete legal form to the
abstract notion of personal autonomy. The French and Belgian penal codes do not
require proof of a causal link between the accused’s state of mind and the alleged
offence; it is enough that he or she was in a condition that qualifies as ‘a state D-’ at
the time of the act.

 In distinction to ‘lack of criminal responsibility’ based on a lack in mental capacity.

7

 Dementia, impaired mental capacity.

8
1  Adversarial Versus Inquisitorial Systems of Trial and Investigation 15

A striking feature of the psychological approach is that a successful insanity

defence leads in some jurisdictions to an unconditional acquittal. In some jurisdic-
tions, like the Netherlands and Germany, safety measures are nevertheless possible
against the former accused if and in so far they can be seen as a threat to public
safety, a ground for compulsory measures in (Dutch) mental health law.

1.4.2.3 Sentencing
When it comes to sentencing, there is little difference between the two systems. The
trial judge decides what sentence should be applied. The decision is based on an
analysis of all the relevant information, mostly gathered during the pre-trial investi-
gation including an examination of the mental capacity of the accused in the civil
law system. In the British system, there is very little advocacy from the prosecution,
which leaves the judge to decide on the sentence using the facts of the case and the
formal sentencing guidelines which are established within the justice system as well
as listening to any mitigation that the defence counsel puts forward. The sentencing
phase in both can be regarded as inquisitorial; the criminal court has some discre-
tion to tailor the sanction to the evidence available in order to decide on a ‘proper’
or ‘just’ sanction.

Conclusion
The inquisitorial system tends to rely on the results of the pre-trial investiga-
tion; its advantage is the possibility of a debate at the trial. A possible threat to
the inquisitorial system is a trend to forgo the debate at the trial. Adequate
psychiatric reports can enhance the debate in both systems. The adversarial
system depends upon scrupulous honesty including both the defence and the
prosecution revealing their weak points as well as the strong ones. Sometimes
the competitive urge to win can compromise this honesty. Judges have to be
very alert to ensure that all the rules of the trial kept and fairness are
maintained.
Our general conclusion is that, in the end it is not the system of criminal pro-
cedure that decides whether the outcome is fair and just, but the way in which the
lawyers and others including, sometimes, psychiatrists work adequately together.
If a lawyer and doctor in a psychiatric case don’t understand each other, then
both systems can result in an unfair result.

Take-Home Messages
• A take-home message from this debate is that the two main legal systems
even with differences in historical developments have had confessions as
the gold standard of proof. These days confessions have to be treated with
circumspection and should be supported by scientific evidence. Where in
the present times legal systems interact within Europe, convergence of
rules, type of procedures and standards will be approached.
16 J. Gunn and P. Mevis

• A further point, which follows from this, is that all practitioners should
recognise that no one system has achieved perfection or has all the answers;
discussion, especially international discussion will be beneficial.
• Psychiatrists should remember that a courtroom in any legal system, be it
more inquisitorial or more adversarial oriented, is not a clinic room. But
nevertheless, it is perfectly possible to satisfy both medical ethics and the
demands of the legal oath provided the limitations and biases of medical
evidence are fully acknowledged where psychiatrists are involved in crimi-
nal pre-trial and trial investigations and procedures concerning questions
of criminal liability, evidence and sentencing.
• It is not the system of criminal procedure that decides whether the outcome
of a trial is fair and just, but the way in which the lawyers, the psychiatrists
and others work together within the given system.

References
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University of Cincinnati Law Review. 2012;80(2012):1069–114.
2. Royal Commission on Criminal Justice. Report. The Royal Commission on Criminal Justice,
cm 2263 London, HMSO; 1993.
3. Devlin P. The judge. Oxford: Oxford University Press; 1979.
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ness to stand trial practices: a comparison between Canada and The Netherlands. International
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criminal procedures in Europe. Deventer: Kluwer; 2008.
6. Potter H. Law, liberty and the constitution, a brief history of the common law. Woodbridge:
Boydell Press; 2015.
7. Hostetler J, Braby R. Sir William Garrow, his life, times and fight for justice. Hook: Waterside
Press; 2009.
8. Groot RD.  The jury of presentment before 1215. The American Journal of Legal History.
1982;26:1–24.
9. Langbein JH. The origins of adversary criminal trial. Oxford: Oxford University Press; 2003.
10. van Caneghem RC. Geschiedenis van het strafprocesrecht in Vlaanderen van de XIe tot de XIV
eeuw, Brussels; 1956.
11. Gudjonsson GH. The psychology of interrogations and confessions: a handbook. Chichester:
Wiley; 2009.
12. Ogorodova A, Spronken T. Legal advice in police custody: from Europe to a local police sta-
tion. Erasmus Law Review. 2014;4(2014):191–205.
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1  Adversarial Versus Inquisitorial Systems of Trial and Investigation 17

15. McCauley F. Insanity, psychiatry and criminal responsibility. Dublin: The Round Hall Press;
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2006.
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ship.law.upenn.edu/penn_law_review/vol113/iss1/1

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Hoge Raad der Nederlanden (Dutch highest court in criminal cases), 2 december 2014,
ECLI:NL:HR:2014:3473.
Hoge Raad der Nederlanden 26 May 2015, ECLI:NL:HR:2015:1326.
National Laws and Their History
2
Vicenç Tort-Herrando, Nicoleta Tataru,
and Fernando-Luis Barrios-Flores

2.1 Introduction

The scope of this chapter is to give an idea about national laws and legal systems in
some of the European countries, given the great diversity of national laws and health
systems in Europe.
The lack of criminal responsibility has been described since Greek and Roman
times and later in the Middle Ages (for instance, in Romania and Spain) [1, 2]. It
wasn’t until the eighteenth century that mentally ill offenders started to be placed
together with the non-criminal mentally ill in asylums to get more appropriate psy-
chiatric care. The reforms during the second half of the nineteenth century gradually
permitted the compulsory admission of mentally ill offenders to psychiatric hospi-
tals. As a part of the expansion of mental hospitals during the nineteenth century all
over Europe, some places offered early examples of what could be characterized as
specialized services for mentally ill or disordered offenders.
Influential contributions came from Italy and were made by Beccaria (1738–
1794) and Lombrosso (1836–1909). Beccaria, the founder of the classical school of
criminology, considered criminal acts to be the result of free will and thus to require
punishment or penal sanction [3]. In contrast, Lombroso (1876), as a representative
of the positivist school of criminology, identified physical features assumed to be
characteristic of criminal males and discussed criminal behavior as deterministic.

V. Tort-Herrando (*)
Unitat Polivalent de Psiquiatria CP Quatre Camins and Unitat de Psiquiatria CPHB, PSSJD.,
Barcelona, Spain
e-mail: vtort@pssjd.org
N. Tataru
Psychiatry Ambulatory Clinic, Oradea, Romania
F.-L. Barrios-Flores
Área de Derecho Administrativo, Universidad de Alicante, Alicante, Spain

© Springer International Publishing AG, part of Springer Nature 2018 19

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_2
20 V. Tort-Herrando et al.

As a consequence of crimes resulting from genetic predisposition, offenders should

be treated rather than punished. However, Lombroso’s prognosis for achieving
remission of criminal behavior was not optimistic.
Early in the nineteenth century, after a mentally ill person had tried to assassinate
King George III, Parliament passed a statute aiming at the safe custody of insane
persons charged with offenses. In 1815, a hospital opened that provided specialized
wards for “criminal lunatics” [4]. Even today, it is still a matter of debate among
experts as to whether forensic psychiatric services should be integrated into general
psychiatric hospitals or separated into secure facilities of their own. Whereas large
secure hospitals may be advantageous in that they can provide a variety of special-
ized treatment programs and in that they probably offer better safety for the public,
they also may serve as an example of what Erving Goffman has labeled the “total
institution” [5]. According to this concept, a total institution is characterized by a
basic split between large managed groups, conveniently known as “inmates”, and a
small supervisory staff. Inmates typically live in the institution, and their contacts
with the world outside the walls are severely restricted [6].
During the 1950s and 1960s, as a consequence of psychiatric treatment
approaches, the development of psychopharmacology and new opportunities for
treating the mentally ill, community-based mental health care developed, and the
number of psychiatric hospital beds declined substantially.
The McNaughton Rules from 1843 are considered to be a cornerstone of the
further development of the concept of criminal responsibility. When during the
trial it became evident that McNaughton was mentally disturbed, the jury—rather
unusually for that time—ordered him committed to a mental asylum rather than
deciding to hang an obviously ill person. The uproar over McNaughton’s acquittal
prompted the creation of McNaughton’s Rules by the House of Lords: to establish
a defense on the grounds of insanity, it must be clearly proved that at the time of
the committing of the act, the party accused was laboring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act
he was doing, or if he did know it, that he did not know that what he was doing was
wrong.
Furthermore, the McNaughton Rules defined insanity as intellectual incapacity,
and emotional and volitional aspects were excluded. In 1953, a report by the British
Royal Commission on Capital Punishment therefore proposed an amendment to
McNaughton’s Rules, adding to them an “irresistible impulse test.” The Royal
Commission also specified the term “wrongfulness,” under which the persons con-
cerned are not held responsible for their actions, to include:

• Illegality standards (applicable to defendants lacking the capacity to know or

appreciate that their acts violated the law)
• Subjective moral standards (applicable to persons suffering from a disease of the
mind that results in their belief that they were morally justified in carrying out
their actions)
• Objective moral standards (applicable to persons lacking the capacity to under-
stand that society considers their actions to be morally wrong)
2  National Laws and Their History 21

In the event, the law was changed by the Homicide Act of 1957, which intro-
duced the concept of diminished responsibility into English law, the standard for
which is very low within the Act. This enabled the substitution of a manslaughter
conviction for a murder conviction in cases of mental illness (nonpsychotic as well
as psychotic), thereby allowing a range of possible disposal options.
The Old Germanic law as well as the ancient laws of Ireland and ancient Dutch
law are reported to already have included certain features of the concept of reduced
criminal responsibility for criminal acts and thus reduced punishment [7].
At the end of the nineteenth century, German psychiatrist Kraepelin criticized
the use of punishment as the sole available sanction since it neglects the indi-
vidual disposition of an offender and the chance to treat certain kinds of misbe-
havior [8]. Thus, acquittal from imprisonment should depend on
psychopathological status. As a consequence, the responsibility for a discharge
decision should be shifted from judges or courts to the psychiatrist. Convinced
that recidivism or repeated delinquency was closely linked to a mental disorder,
Kraepelin favored the integration of the concept of diminished criminal respon-
sibility into the penal code.
In the Netherlands, the first statute referring to criminal responsibility of
varying degrees appeared in 1809, to be applied to cases of insanity, varying
madness, and organic diseases affecting the mental state, as well as to severe
mental retardation. Punishment or acquittal would be decided on the basis of
the degree of criminal responsibility. However, this progressive law was never
applied in practice due to the French annexation of the Netherlands in 1810,
after which French penal law stayed in effect until Dutch penal law was initi-
ated in 1886. Although the Dutch penal law does not explicitly mention the
diminished criminal responsibility, the concept was implicitly introduced into
the Dutch judicial context in 1928. From this time on, punishment for mentally
disordered offenders has been able to be combined with specific restrictive
measures (the Dutch Entrustment Act “terbeschikkingstelling” abbreviated as
“tbs”) in the Netherlands [7].
In most European countries, in the 1990s, following changes in European and
international laws (human rights, prison, mental health, etc.), there was a review of
the penal codes and mental health acts regarding criminal responsibility and place-
ment of mentally ill offenders.
Also in the former communist countries (Romania, Hungary, etc.), there were
important changes in legislation regarding forensic patients (including prisoners) as
they joined the main international conventions about human rights.

2.2 Legal Systems

History and identity of the countries had a great influence on the principles and
practices of each national legal system. In Europe there are two main systems
upon which most countries’ systems are based. These are Roman law and com-
mon law.
22 V. Tort-Herrando et al.

2.2.1 Roman Law

This law underpins most legal systems in continental Europe. From its origins in
ancient Roman and Greco-Roman tradition, its current forms reflect the evolution it
experienced during the Middle Ages in Central Europe under the Holy Roman
Empire and at the beginning of the modern era with the French Revolution.
Penal codes state what is an offense and what is not and lay down procedures
and punishments which must be applied by magistrates and judges with little dis-
cretionary power. Interpretation is limited, codes and doctrines are the sources of
judgment, and jurisprudence plays a minor role. A consequence of such systems is
that processes of change in specific areas are very slow and that there is little flex-
ibility in adapting legal outcomes to circumstances and individual situations.
Roman law systems can be quite different. German laws may be considered the
prototype of Roman law, while Mediterranean countries seem to have simpler sys-
tems, with fewer options and wider discretionary powers accorded to judges in
difficult cases. France, Belgium, and Holland (nations with many legal aspects in
common) seem to have more detailed laws, in which many exceptions are regu-
lated, as do Scandinavian countries, in which civil law seems to regulate more
matters [5].
With regard to mentally disordered offenders, Roman law tends to emphasize the
psychological element of an offense: the basic concept is responsibility, which in
cases of insanity at the time of an offense is considered to be diminished or lacking.
Usually, for reasons of public safety, a security measure can be applied in case of
persistent dangerousness [5]. For instance in Spain, a security measure is applied,
following the Spanish penal code, when there is an offense and there is a likelihood
of an offense being repeated. This measure could be implemented both in a psychi-
atric hospital and in mental health community resources.

2.2.2 Common Law

This is practiced and observed in all countries whose legal systems developed from
the Anglo-Saxon. Its roots lie in the more informal way of managing justice adopted
in the early Anglo-Saxon kingdoms, and it is much less prescriptive in nature. It has
a pragmatic approach and emphasizes behavior rather than psychological elements.
The judge has wider discretionary powers, and the trial is aimed at ascertaining
whether the offense was committed or not. Once the verdict has been reached, a
decision is taken as regards the sentence or disposal of the case, which in cases of
mental illness entails a placement in hospital for treatment. This disposal is a prag-
matic decision arising from issues of justice, equality, effectiveness, and the right to
psychiatric treatment. There is no concept of responsibility but rather a series of
empirical acts and decisions which are taken in the best interests of the individual
and of society.
The implications of this system are that each case can be flexibly managed as to
procedures and to placement, and that changes are much more rapid, allowing for
2  National Laws and Their History 23

radical reforms and different practice, based simply on the decisions of one or more
judges, when new needs are felt. The forensic psychiatry system can undergo more
rapid development and change. It is readily understandable, given the above, that
procedures and practices may be very different in these systems and that concepts
and terminology may vary.
Most of the EU members’ laws regarding forensic patients are traditionally based
on Roman law (Austria, France, Germany, Spain, etc.), while some have Roman law
and certain common law features (Denmark, Sweden, and Finland), and others have
common law (England and Wales, Ireland). In those cases where the common law
is implemented, it is easier to adapt legislation to new changes, while in those with
Roman law, changes in approach to mentally ill offenders take more time to be
modified.

2.3 Health-Care and Welfare Systems

As with their legal systems, European countries have adopted very different welfare
and health-care systems, in which variations are particularly great where mental
health care is concerned.
Italy, the UK, and most Scandinavian countries have adopted a radical public
health approach and run National Health Services (NHS) with an objective of
universal and comprehensive coverage. Under this approach, the UK has pro-
moted a major reform, integrating within the NHS all forensic psychiatric treat-
ment facilities, leaving to the judicial system only the role of reaching a verdict
and of disposing of mentally ill cases by transferring them to the health-care sys-
tem [5].
Most European countries run mixed systems, where some basic services are pro-
vided by the state and most services are provided on private or public insurance
schemes. The development of the forensic psychiatric system is always a state task,
but it can be accomplished either by the Ministry of Justice or the Ministry of
Health. It is clear that, in these countries, integration with general psychiatric ser-
vices can be more difficult given the different administrative arrangements govern-
ing different sectors.
A broad consensus to move toward deinstitutionalization has emerged across
most of Western Europe in the past 20 years. This change is still underway in Central
and Eastern Europe. Despite this, the rate of change has varied markedly, and sup-
port service models vary substantially. Many countries which have already chosen
to switch to a community-based mental health system or have incorporated substan-
tial community services in a hospital-based system still provide a high number of
psychiatric beds.
Mental health legislation focused the interests of most countries during the
1990s. Two recent comparisons of the legal frameworks in European Union
member states have delineated models for regulating this complex issue; these
may also influence legislation and care routines for mentally disordered offend-
ers [9, 10].
24 V. Tort-Herrando et al.

2.4 Cultural Attitudes

Cultural attitudes have a strong influence in determining the shape of regulations,

practices, and innovations, both in judicial and health-care systems. These cultural
attitudes vary perceptibly and result from multiple social sources.
Detention is practiced only in the case of major offenses, and alternative mea-
sures are often proposed. This may contribute to the low figures for detained men-
tally disordered people in prisons and forensic care in Latin countries. But attitudes
toward care may also help explain the low figures. In Latin countries, informal sup-
port from family, community, and nonprofessional agencies is traditionally stronger
than in Central European-, Scandinavian-, and English-speaking countries. Only
recently, with rapid and dramatic demographic changes (low birth rate, increasing
immigration, the aging population), do these traditional informal supports seem to
be becoming weaker, with more requests for public assistance from the health or
social services becoming apparent. In general, in Latin countries, it is still perceived
as the responsibility of the family to take care of a person with a mental disorder,
and this might explain the lower rates of institutionalization [5].

2.5 The European and International Policy

Mentally ill offenders are an issue that does not fall within a single policy area but
cuts across a number of fields such as health, legal affairs, and human rights in a
variety of ways and to differing degrees. The fact that a mentally ill person who
has committed a crime must be viewed as both a patient and as an offender encap-
sulates the complexity of the issue. Consequently, for the European Community,
the issue of the placement and treatment of mentally ill offenders incorporates
concerns both from the field of public health and from those of legal affairs and
human rights.
With the development of public health as an area of competence for the commu-
nity, mental health issues were integrated step-by-step into this new competence.
The Council Resolution of June 2, 1994 on the framework for community action in
the field of public health called for the issue of mental illness to be explored and
actions at community level to be identified in order to assist member states in this
area. The commission communication of April 16, 1998 on the development of a
public health policy also identified mental health as a field that has to be taken into
account in future community action.
The Council Resolution of 18 November 1999 on the promotion of mental health
called for member states to give attention to mental health, to promote the exchange
of good practice and joint projects, as well as to support research activities, includ-
ing using the support of the fifth and sixth framework programs of the European
Community for research, technological development, and demonstration activities.
These developments have been accompanied by an intense process in the recent
years to promote a European mental health agenda so as to provide a visible plat-
form of mental health issues in a European context. One of the first steps toward
2  National Laws and Their History 25

realizing this goal was the founding of the European Network on Mental Health
Policy in 1995.
The next step taken was a research project in 1997 on the development of Key
Concepts for European Mental Health Promotion. In April 1999, a joint WHO and
European Commission meeting on Balancing Mental Health Promotion and Mental
Health Care was held in Brussels, Belgium, followed by a European Conference on
Promotion of Mental Health and Social Inclusion in October 1999, in Tampere,
Finland.
The issue of mentally ill offenders is also of concern with regard to the commu-
nity’s policy area of legal affairs. Here, the community is pursuing a policy to
encourage legal cooperation in criminal matters and to slowly harmonize substan-
tive and procedural criminal law with regard to those crimes that are of a cross-­
border nature. Although the Treaty of Maastricht identified various areas of the
Directorate-General (DG) of justice and home affairs as matters of common inter-
est, there was still no legal basis for a convergence of substantive criminal law. The
Treaty of Amsterdam laid the groundwork for a convergence of substantive but not
procedural criminal law. The 1998 Vienna Action Plan laid down provisions as to
how best to implement the Amsterdam Treaty with regard to the areas of freedom,
security, and justice. In 1999, the Tampere European Council sets further goals: the
convergence of criminal law in specific sectors identified as areas of common inter-
est, the coordination and the mutual recognition of judicial proceedings, and the
protection of individual human rights. Certain cross-border crimes that were identi-
fied by the Tampere European Council as a primary field of action, such as the
sexual exploitation of children, touch upon the issue of the placement, and treatment
of mentally ill offenders. Community-wide activity also includes mentally ill
offenders as a target group [5].

2.6 Mentally Ill Offenders and Human Rights

The placement and treatment of mentally ill people who have committed criminal
offenses must be considered in the context of human rights. Human rights are insep-
arably linked to mental health as both are complementary approaches to the
improvement of the human condition. Human rights also are the only source of law
that legitimizes international scrutiny of mental health policies and practices within
a sovereign country [11].
The fundamental document in the protection of human rights in Europe is the
European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) of the Council of Europe, which was signed in 1950 and took
effect in 1953. The European Convention is not statutory. As a tool of the Convention,
the European Court of Human Rights (ECHR) investigates alleged violations of the
Conventions’ human rights standards, involving interstate cases as well as individ-
ual claims. However, the court is only able to consider those cases that have already
exhausted all domestic remedies. There have been several judgements by the court
concerning national mental health laws and practices. The resulting case law has
26 V. Tort-Herrando et al.

dealt mainly with issues of compulsory detention, conditions of confinement, and

civil rights. Additional articles of importance to people with mental illness, includ-
ing those who have committed an offense, concern the obligation to respect human
rights (Article 1), the right to life (Article 2), the prohibition of torture (Article 3),
the right to a fair trial (Article 6), the prohibition of punishment without law (Article
7), and the prohibition of discrimination (Article 14).
Conclusions about the impact of this act differ. It was initially suggested that the
Human Rights Act would be likely to result in “a flood of legal cases,” particularly
those of patients admitted on a compulsory basis under the Mental Health Act. In
1983, the Committee of Ministers of the Council of Europe adopted a
Recommendation Concerning the Legal Protection of Persons Suffering from
Mental Disorder Placed as Involuntary Patients. The 1994 Parliamentary Assembly
Recommendation 1235 on Psychiatry and Human Rights refers to compulsory
admission in general, and no special distinction is made between mentally ill per-
sons admitted under civil law and those admitted following criminal proceedings.
Nevertheless, the recommendation gives special attention to the situation of detained
persons, stating that the recommendations set out should also apply to them. In
2000, the Council of Europe published a white paper on the protection of human
rights and dignity of people suffering from mental disorder especially those placed
as involuntary patients in a psychiatric establishment, and the scope of which
encompassed civil detention as well as detention in the context of offending. The
white paper defines the roles and certain standards regarding the various agencies
involved in the placement and treatment of mentally ill offenders, such as the police,
courts, prisons, and medical experts. It further emphasizes that member states
should ensure sufficient provision of a range of hospital accommodation with the
appropriate levels of security and community-based forensic psychiatric services.
The European Prison Rules (1987) also stipulate an obligation to treat mentally ill
detainees not in prison but in appropriate establishments.
In December 2000, the EU proclaimed the Charter of Fundamental Rights of the
European Union. The Charter itself provides standards of health care in Article 35,
stating that “Everyone has the right of access to preventive health care and the right
to benefit from medical treatment under the conditions established by national law
and practices. A high level of human health protection shall be ensured in the defini-
tion and implementation of all Union policies and activities.” The principles set out
in this article are based on Article 152 of the EC Treaty and on Article 11 of the
European Social Charter (the right to protection of health). Chapter VI on justice
includes the right to an effective remedy and fair trial (Article 47), the presumption
of innocence and right to defense (Art. 48), the principles of legality and proportion-
ality of criminal offenses and penalties (Article 49), and the right not be tried or
punished twice in criminal proceedings for the same offense (Article 50). Despite
its nominalized legal status, it is argued that the Charter represents a step forward
in the protection of human rights and articulates a new normative basis and a new
ethic for the European Union.
The Universal Declaration of Human Rights attempts to achieve common stan-
dards of human rights. It contains several articles that protect human rights
2  National Laws and Their History 27

concerning the placement and treatment of mentally ill persons, including those
who are placed on the basis of criminal proceedings. Article 5 states that “…no one
shall be subjected to torture or to cruel, inhuman or degrading treatment or punish-
ment.” Article 12 of the Declaration states that “…no one shall be subjected to
arbitrary interference with his privacy, family, home or correspondence, nor to
attacks upon his honor and reputation,” an article which is put forward by critics
against the granting of wider access to the medical data of mentally ill offenders or
the introduction of offender registration laws. The Declaration is not legally bind-
ing. In the early 1970s, the United Nations began intense debates on issues of men-
tal health, and the years 1983–1992 were designated as the “Decade for Disabled
Persons.” In 1989, the General Assembly adopted the Principles for The Protection
of Persons with Mental Illnesses and The Improvement of Mental Health Care,
which formulate detailed statements on the rights of people with mental illness. The
Principles state that all people have the right to the best available mental health care
and that treatment should be undertaken with humanity and respect (Principle 1).
Specific reference is made to the fact that these principles shall also apply to crimi-
nal offenders suspected of suffering from a mental illness (Principle 20). The prin-
ciples also determine standards of surgical procedures, stating that sterilization
should never be carried out as a treatment for mental illness. Any major surgical
procedure should only be carried out on the basis of a formal domestic law and with
the patient’s informed consent. No irreversible treatment should be carried out on an
involuntary patient. In addition, the principles determine that clinical trials and
experimental treatment should never be carried out on a patient without the patient’s
consent. If a patient is unable to give this consent, an independent body has to give
its approval (Principle 11). The Standard Minimum Rules for the Treatment of
Prisoners states that persons found to be insane are not to be detained in prisons. It
also states that prisoners suffering from other mental abnormalities shall be observed
and treated in specialized institutions under medical management, and steps shall be
taken to ensure the continuation of care after release.
The United Nations Standard Minimum Rules for Non-Custodial Measures (“the
Tokyo Rules”) aim for the rehabilitation of offenders as well as their integration into
the community and call for the development of noncustodial measures. The Rules
reject the controversial practice of community access to the personal data of an
offender, stating that the offender’s personal records should be kept strictly confi-
dential with access limited to persons directly concerned with the case. Furthermore,
the Rules call for the avoidance of pretrial detention as a means of last resort only
for investigation or protection of society and for post-sentencing alternatives to
assist the offender with his/her reintegration into society. UN resolutions as such are
not legally binding documents. However, they are of practical importance as they
help to establish international human rights norms by creating a baseline for fair
treatment of mentally ill persons and therefore also enable objective monitoring of
psychiatric abuses.
The Convention on the Rights of Persons with Disabilities is an international
human rights treaty of the United Nations intended to protect the rights and dignity
of persons with disabilities. Parties to the Convention are required to promote,
28 V. Tort-Herrando et al.

protect, and ensure the full enjoyment of human rights by persons with disabilities
and ensure that they enjoy full equality under the law. The Convention has served as
the major catalyst in the global movement from viewing persons with disabilities as
objects of charity, medical treatment, and social protection toward viewing them as
full and equal members of society, with human rights. It is also the only UN human
rights instrument with an explicit sustainable development dimension. The
Convention was the first human rights treaty of the third millennium. The text was
adopted by the United Nations General Assembly on 13 December 2006 and opened
for signature on 30 March 2007. Following ratification by the twentieth party, it
came into force on 3 May 2008. As of October 2016, it has 160 signatories and 168
parties, including 167 states and the European Union. The Optional Protocol to the
Convention on the Rights of Persons with Disabilities is a side-agreement to the
Convention on the Rights of Persons with Disabilities. It was adopted on 13
December 2006 and entered into force at the same time as its parent Convention on
3 May 2008 [12]. As of October 2016, it has 92 signatories and 92 state parties. The
Optional Protocol establishes an individual complaint mechanism for the
Convention.
The United Nations Standard Minimum Rules for the Treatment of Prisoners (“the
Mandela Rules”) are accepted as being good principles and practice in the treatment
of prisoners and prison management. Some of the rules describe how prisoners with
mental health conditions should be treated and state that prisoners should enjoy the
same standards of health care as is available in the community [13].
A thorough knowledge of human rights issues as well as of the respective inter-
national and national legal instruments is essential for both researchers and forensic
practitioners in view of their implications in the managing of mentally ill patients,
including those admitted under criminal law.

2.7 Recommendations and Conclusion

• The great diversity of legal systems regarding mentally ill offenders as well the
mental health system of each country makes it difficult to reach some sound
conclusions when assessing, detaining, trying, and sentencing mentally ill
offenders, as well managing their placement. In most of European states, these
laws are relatively new or were revised during the last two decades. On the one
hand, such change contributes to the complexity of the problem, but on the other
it offers opportunities for the revision, improvement, and harmonization of legal
frameworks.
• Court procedures are variable and provide numerous differing pathways pre- and
post-trial in the mental health-care systems, the specialized forensic systems, and
the prisons and other penal systems. There are different discharge procedures for
forensic patients, and in some member states discharge procedures include oblig-
atory conditions or release on recognizance.
• The legal definition of mental illness or the absence of it in different countries
means that some offenses could be treated in forensic psychiatry or prison
2  National Laws and Their History 29

s­ettings (for instance, sexual offenses or personality disorders). There are no

uniform concepts as to which mental disorders are covered by forensic legisla-
tion across the member states. The legal terms are vague and have little relation
to medical concepts or to modern international classification systems for mental
disorders, thus providing no practical guidelines for assessment or decision pro-
cedures. However, routine practices in the majority of the states show a common
pattern, at least in including within the scope of the relevant legislation the major
mental disorders such as schizophrenia (most often termed “psychotic state”),
affective disorders, and organic mental disorders. Even more variable is the han-
dling of alcohol-related disorders. The wide range of mental states connected to
these syndromes—from simple intoxicated states to severe addiction or even
psychotic states—prevents the elucidation of common approaches or typical
judicial procedures for offenses committed under the influence of alcohol. The
variable or non-specific inclusion of alcohol-related and addiction-related per-
sonality disorders marks a clear shortcoming in the forensic legislation of the
European states and prevents the harmonization of legal frameworks and routine
practices within or across these states.
• There are no clearly defined national or European indicators as to the effective-
ness of legal concepts or of current practices for detaining or treating mentally
disordered offenders. Reoffending rates among people discharged from forensic
detention would probably provide the most useful information, along with psy-
chiatric estimates for treatment success. Generally, a set of European indicators
should be developed, covering and standardizing the most basic data in the field
(service provision, outcomes, prevalence, incidence, length of stay, disorders,
types of crimes, and reoffending rates).
• There are divergent ideas concerning the inclusion of forensic care and the deten-
tion of mentally ill offenders in the general mental health-care system, ranging
from strict separation to full inclusion. Outpatient forensic care and forensic
aftercare seem to be particularly underdeveloped.
• The role and responsibility of psychiatrists in the process are complex and
variably defined. It often exceeds basic medical expertise (in assessing the
mental state and applying psychiatric treatments) and may extend to predicting
the criminal prognosis and guaranteeing the safety of detainees and of the
public.
• European Union countries differ widely in the extent to which they recognize
forensic psychiatry as a specialty and thus also in the amount of training clini-
cians receive before they present themselves as expert witnesses in court, or
develop or run services, or manage and treat individual offender patients [14].
This training should, always, include legal and ethical aspects.
• Basic human rights principles seem be fulfilled in the most of the countries,
although the delay between the new international conventions and the approval
by national parliaments means implementation in the daily attention to mentally
ill offenders could take several years. There are variable definitions of the role of
mentally disordered suspects or defendants during court procedures, for instance,
regarding attendance and legal representation.
30 V. Tort-Herrando et al.

• Furthermore, the financial situation of each country could also limit some foren-
sic psychiatric developments.
• International research and networking on the issue should be encouraged. This
would be likely to focus the development of adequate interdisciplinary working
and could contribute basic evidence to the field of a type which is currently
lacking.

Take-Home Messages
• Wide variability of legal framework is found around Europe.
• There are different forensic health systems to treat mentally ill offenders.
• Human rights (Council of Europe, United Nations) conventions should be
implemented in all countries around Europe.
• International research and networking is of paramount importance in order
to have reliable data to improve legislation and services.
• Training has to include legislation (both local and international) and ethi-
cal issues. Networking among forensic mental health professionals has to
be encouraged.

References
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el ámbito penitenciario. Revista Criminalidad. 2015;57(1):45–60.
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countries. Curr Opin Psychiatry. 2010;23:472–80.
3. Ciccone JR, Ferracuti S. Comparative forensic psychiatry: I. Commentary on the Italian sys-
tem. Bull Am Acad Psychiatry Law. 1995;23:449–52.
4. Gunn J, Taylor PJ. Forensic psychiatry—clinical, legal and ethical issues. Oxford: Butterworth
Heinemann; 1999.
5. Salize HJ, Dressing H. Placement and Treatment of Mentally Ill Offenders—Legislation and
Practice in EU Member States—Final Report; 2005.
6. Goffman E.  Asylums: essays on the social situation of mental patients and other inmates.
New York: Doubleday; 1961.
7. Zeegers M. Diminished responsibility: a logical, workable and essential concept. Int J Law
Psychiatry. 1981;4:433–44.
8. Hoff P. Emil Kraepelin and forensic psychiatry. Int J Law Psychiatry. 1998;21:343–53.
9. Fioritti A. Leggi e Salute Mentale: Panorama europeo delle legislazioni di interesse psichi-
atrico. Torino: Centro Scientifico Editore; 2002.
10. Salize HJ, Dressing H, Peitz M. Compulsory Admission and Involuntary Treatment of Mentally
Ill Patients—Legislation and Practice in the EU Member States—Final Report; 2002.
11. Gostin LO.  Human rights of persons with disabilities. The European convention of human
rights. Int J Law Psychiatry. 2000;23(2):125–59.
12. The Convention on the Rights of Persons with Disabilities. http://www.un.org/disabilities/
convention/about.shtml
13. United Nations Standard Minimum Rules for the Treatment of Prisoners (The Mandela
Rules). Resolution 2015/20 the Economic and Social Council recommendation to UN General
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Health. 2012;22:238–46.
Legal Approaches to Criminal
Responsibility of Mentally Disordered 3
Offenders in Europe

Michiel van der Wolf and Hjalmar van Marle

And when he’s not himself does wrong Laertes,

Then Hamlet does it not, Hamlet denies it.
Who does it, then? His madness…
Shakespeare [1]

3.1 Introduction

3.1.1 A Moral Tradition

In these times of political and monetary turmoil in Europe, when mutual cultural
differences are being highlighted, binding statements about our joint history and
traditions are often heard in response. When explaining how different European
jurisdictions approach the criminal responsibility of mentally disordered offenders,
it may be a similar wisdom to start off with our common ground. In this case in the
famous words of the—nota bene—American judge Bazelon in Durham v. United
States [2]:
The legal and moral traditions of the western world require that those who, of their own free
will and with evil intent, commit acts which violate the law, shall be criminally responsible
for those acts. Our traditions also require that where such acts stem from and are the product
of a mental disease or defect as those terms are used herein, moral blame shall not attach,
and hence there will not be criminal responsibility.

A first nuancing to be made is that this tradition is not exclusively Western, as

also in the Eastern world, similar ancient traditions are known [3]. The tradition

M. van der Wolf (*)

Department of Criminal Law/Forensic Psychiatry, Erasmus Medical Centre and
Erasmus School of Law, Rotterdam, the Netherlands
e-mail: vanderwolf@law.eur.nl
H. van Marle
Department of Forensic Psychiatry, Erasmus Medical Centre and Erasmus School of Law,
Rotterdam, the Netherlands
e-mail: hjalmarvanmarle@icloud.com; almar@xs4all.nl

© Springer International Publishing AG, part of Springer Nature 2018 31

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_3
32 M. van der Wolf and H. van Marle

may not even be exclusively human, as it can also be seen in action in other pri-
mates. For example, it is observed that a Rhesus monkey with a condition that
resembled human Down’s syndrome would as an exception not be punished by the
group for violating the rules of their strict society, like threatening the alpha male.
‘It was as if everyone realized that nothing they did would ever change her inept-
ness’ [4].

3.1.2 Aim, Scope and Approach

More importantly however in this context is the nuancing that a shared moral tradi-
tion waters down into different legal systems in a wider variety of forms and sub-
stances than Bazelon’s quote suggests. The aim of this chapter is to explain a few
major distinctions in the legal approaches to criminal responsibility of mentally
disordered offenders in European jurisdictions.
By ‘European’ we do not mean to limit the continent to the members of the
European Union but rather to a broad scope like the members of the Council of
Europe, best known for its European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR). Even though both ‘Brussels’ and
‘Strasbourg’ may produce binding legal obligations in the realms of criminal law
and mental health law, so far the national approach to criminal responsibility of
mentally disordered offenders has generally been left to the members’ discretion.
However, the nonbinding United Nations Convention on the Rights of Persons with
Disabilities (2006) states that also psychiatric patients should be treated (in laws) as
full participating members of society able to make their own choices, which would
mean that legal insanity is in itself discriminatory and thus unlawful.
With regard to deprivation of liberty, Article 5 (1, e) of ECHR mentions the law-
ful detention of ‘persons of unsound mind’ and of course that of a person after
(criminal) conviction by a competent court (1, a). In some cases of (preventive)
detention of mentally disordered offenders, the European Court of Human Rights
in Strasbourg has considered both provisions applicable, allowing for detention of
longer duration than the maximum penalty on the committed offence and an obli-
gation to provide treatment [5]. With regard to this population, the European
Union’s legislating efforts have mainly focused on procedural safeguards for ‘vul-
nerable persons suspected or accused in criminal proceedings’. Vulnerability
should be presumed in cases of ‘persons with serious psychological, intellectual,
physical or sensory impairments, or mental illness or cognitive disorders, hinder-
ing them to understand and effectively participate in the proceedings’ [6]. These
directives touch upon the subject of competency or fitness to stand trial, a concept
which can generally be distinguished from criminal responsibility as derived from
procedural instead of substantive criminal law and focusing on the time of the trial
(or earlier stages in the procedure) instead of the time of the offence. In this chapter
the discussion on legal insanity will be limited to the latter, thereby also excluding
all kinds of doctrines of incompetence and unaccountability known in civil or
administrative law.
3  Legal Approaches to Criminal Responsibility of Mentally Disordered Offenders 33

Our intention is not to present a complete overview of provisions in all applica-

ble jurisdictions as, for example, Salize and Dressing [7] have done for placement
and treatment of mentally disordered of the EU members, but to describe a few
major distinctions. Therefore, first of all some common historical roots will be
explored. Just as Aristotle has argued that matter is made into a substance by the
form that it has, the matter of criminal responsibility will then be addressed first in
its form—the legal context—and second as substance—the contents of the legal
doctrine. Finally, the implications for the behavioural scientific disciplines that are
generally asked to assess criminal responsibility will be discussed, as well as recent
debates about the doctrine.

3.2 Common Historical Roots

3.2.1 Hebrew, Greek and Roman Roots

As the Western world is said to have a Judeo-Christian tradition, then so has the
moral tradition of legal insanity. Our knowledge of this tradition dates back to the
earliest recordings of Hebrew law. The Babylonian Talmud (written around 500 AD)
mentions:
Idiots, lunatics and children below a certain age ought not to be held criminally responsible
because they could not distinguish good from evil, right from wrong and were thus blame-
less in the eyes of God and man. It is an ill thing to knock against a deaf mute, an imbecile
or a minor. He that wounds them is culpable, but if they wound others they are not culpa-
ble… for with them only the act is a consequence while the intention is of no consequence.
(cited in [3, p. 4])

In Hebrew law, criminal acts were dealt with in a civil law manner. Similarly,
many mediaeval Western European legal traditions—for example, both the English
and the Germanic—reacted to crimes through compensation or restitution. Kinsmen
of the insane offender were held liable for compensating the victim and were also
held responsible for preventing future harm by the offender [8, 9].
A similar moral tradition can be found in the other ancestor of Christian, Western
law, both the mythological and philosophical thought of classical Greece and Rome.
As a starting point, usually the Greek Philosopher Plato’s (427-347 BC) draft of
Utopian laws is mentioned:
Someone may commit an act when mad or afflicted with disease… [and if so,] let him pay
simply for the damage; and let him be exempt from other punishment. Except that if he has
killed someone and his hands are polluted by murder, he must depart to a place in another
country and live there in exile for a year [10].

The idea of a ‘moral excuse’ can actually be traced back to that other great Greek
philosopher Aristotle [11]. Even though there is no historical evidence that these
laws were in fact ever practiced in any part of ancient Greece, connections can be
shown with the main source of Roman law, The Justinian Digest—a collection of
34 M. van der Wolf and H. van Marle

texts from legal scholars (100  BC-300  AD, compiled in 533  AD) [8]. A certain
Modestinus states that someone falling in the category of ‘lunatics’ (furiosi, mente
capti and dementes) who had committed an offence could not be punished, because
he was ‘excused by the misfortune of his fate’, stemming from the belief that a mad-
man was already punished by virtue of his mental condition (Justinian Digest 48, 9,
2 Modestinus, cited in translation in Parlopiano [12, p. 186]). The rationale is per-
haps a reference to the classical notion that madness was a divine punishment—just
as Juno had jealously punished Hercules with madness. In other parts of the Digest,
damage done by the insane is compared to that done by an animal or a tile falling
from the roof (9, 2, 5.2 Ulpian), ‘as if it happened by some chance… and not as if
done by a person’ (26, 7, 61 Pomponius).

3.2.2 Church Influences

Even though the Justinian Digest dates already from after the fall of the Western
Roman Empire, Roman law would heavily influence legal scholarship across Europe
in the ages thereafter. It would pragmatically be used to be referred to when local
legal customs were lacking in a particular area. It has therefore been argued that
many jurisdictions today have an insanity defence that can be traced back specifi-
cally to the earliest to survive insanity defence case in Roman law; that of Aelius
Priscus [8]. For example, in the famous English case of James Hadfield who in 1800
attempted to kill King George III, the Latin phrase ‘furiosus solo furore punitur’—a
madman is only punished by his madness—was quoted at the trial by Sir Edward
Coke [9, p. 39].
Nevertheless, even though the Catholic Church was in a way a custodian of Roman
law, theology and criminal law as divine and earthly justice influenced each other
from Medieval Times with the idea of the sin tribunal as expressed in the Last
Judgment as mediator [13]. Punishment as penance, for example, led the Church
Synod of Worms (868 AD) to a ruling suggesting that an individual who killed some-
one while insane and later returned to sanity would still be in need of, however less,
penance. This was interpreted as referring to a situation of an individual whose earlier
actions had brought about their insanity—a concept which is widely adopted in mod-
ern legal doctrine as a correction to the moral tradition and is called vicarious respon-
sibility, culpa/dolus in causa or prior fault, mainly related to prior substance use [12].
An exceptional interruption of the moral tradition in the Late Middle Ages was
also the result of the Church influence that turned heresy into an offence. Some
mentally disordered offenders were given harsher punishment than ordinary offend-
ers but only because they were mistaken for persons possessed by demons, even by
doctors [14]. It underlines the importance of the medical state of the art in assessing
insanity and assisting criminal justice. The Dutch doctor Johannes Wier is known to
be the first to separate the mentally ill from the possessed in the sixteenth century,
as a predecessor of French doctor Philippe Pinel who is said to have freed the men-
tally ill from criminal chains in the dungeons of Bicêtre in the late eighteenth cen-
tury [15].
3  Legal Approaches to Criminal Responsibility of Mentally Disordered Offenders 35

Even though in the era of the Reformation, through the two kingdoms doctrine,
criminal law becomes less theocratic, it becomes even further influenced by reli-
gious thought and separated from civil and police law sanctioning in which punish-
ment was merely a reaction to crimes which could not be compensated. ‘Principles
of modern criminal law, as central as the guilt principle and the personality of pun-
ishment, are, from a historical point of view nothing but derivatives of the idea of
divine justice’ [13, p. 169]. This idea of personal ethical blame explains how guilt,
intent and voluntariness—free will—of the perpetrator became central concepts in
the criminal law of today, thereby ‘colouring’ the concept of criminal responsibility.
Walker [9] describes how in England certain crimes which were punishable—even
by death—because they could not be wiped out by compensation, could at first not
entirely be excused, but through Church influence later could, by absence of inten-
tion and/or voluntariness, ‘not out of own free will’.

3.3 Differences in Form of the Responsibility Doctrine

3.3.1 Context Within Criminal Law and Procedure

Despite many regional differences, similar historical commonalities as described

for legal insanity have led to some sort of doctrinal consensus that criminal liability
generally requires both ‘harm and fault’. Derived from the Latin phrase ‘actus non
facit reum nisi mens sit rea’—loosely translated as ‘an act does not make a man
guilty unless his mind is (also) guilty’—a criminal offence is the combination of a
bad act (‘actus reus’) and ‘a guilty mind’ (‘mens rea’). Of course there are excep-
tions to the basic rule, for example, some jurisdictions know ‘strict liability offences’
which do not require an assessment of ‘mens rea’. Mens rea is acknowledged to
have both a descriptive meaning—the fault element of an offence—and a normative
meaning—blameworthiness. In most (Continental) European jurisdictions, this sec-
ond distinction leads to the following system of assessing criminal liability: first, the
elements of the statutory offence definition, both relating to actus reus and mens rea;
second, the wrongfulness of the conduct; and third, the blameworthiness of the
offender. The latter two generally correspond with the liability-negating circum-
stances of ‘justifications’ and ‘excuses’ [16]. It explains that the concept of criminal
responsibility is not exclusively related to mental disorder. Criminal non-­
responsibility may, for example, also refer to the legally underaged or be related to
other excuses or justifications. In this system ‘insanity’—or the lack of criminal
responsibility due to a mental disorder—is seen as an excuse negating the blame-
worthiness of the offence. Through this system it can easily be explained that insan-
ity does not generally lead to a complete lack of mens rea, as, for example, the
element of ‘intent’ can usually still be fulfilled: mentally disordered can act inten-
tional and yet not be blameworthy.
In jurisdictions stemming from the English common law tradition, in which
some offences—like murder—are not regulated in statutes but in case law, espe-
cially the presence of an adversarial justice system, leads to a different criminal
36 M. van der Wolf and H. van Marle

procedure, also concerning insanity. In inquisitorial justice systems, common on the

continent, judges play an active investigative role in establishing the three require-
ments for liability, while in adversarial systems, they are mainly the referee in the
contest between equivalent rivals: the prosecution and the defence [17]. From the
perspective of forensic psychiatry, this difference has relevant consequences. In
adversarial justice systems, for example, the emphasis on equality of arms and an
active defence by the accused evokes a more prominent position of the unfitness to
stand trial doctrine [18]. In addition, in an adversarial system, expert witnesses—
including in forensic psychiatry—are usually appointed by the parties, which could
lead to a battle of the experts, while in an inquisitorial system, they are generally
appointed by the court. For example, in England, as one of the mentioned solutions
for the battle of the experts, a Law Commission [19] advised to have a third expert
appointed by the court.
The contest between parties in adversarial justice also entails positioning through
the use of formal pleas and defences. The defendant can plead guilty or not guilty
but also use an insanity plea or an insanity defence. Similar to the described liability
system common in inquisitorial systems, the offence itself is not contested, but the
moral responsibility (or agency) is, placing the insanity defence amongst the ‘super-
vening’ defences [20]. Compared to inquisitorial systems, raising this defence has
more procedural consequences, as, for example, it generally entails the ‘burden of
proof’ to persuade the decision-makers—usually juries—of your plea [21]. Even
though the insanity defence can be viewed as the functional equivalent of the excuse
of non-responsibility in other jurisdictions, it is probably because of this different
procedural embedding that some argue that, for example, in England and Wales the
issue of criminal responsibility is absent ([7]; the issue of diminished responsibility
is discussed in §3.4.3).
However there are jurisdictions in which the issue is truly absent, but this has to
be understood against a different background. For example, the fact that Sweden has
abolished its responsibility doctrine in 1965 is ultimately rooted in the debate
between classical criminal law theorists—emphasizing free will and rational choice
as the cause of crime—and modern theorists, adopting determinism and biopsycho-
social causes of crime. While this debate was prevalent all over Europe (and
beyond), in most other countries, modernists did not manage such a grand victory.

3.3.2 Context Within Sentencing Law and Mental Health Law

Abolishing the criminal responsibility doctrine poses new problems, amongst which
the question of how mentally disordered offenders will then be led to the appropri-
ate place for protection of society and/or treatment. As establishing non-­responsibility
generally leads to a kind of ‘not guilty’ verdict, some sort of acquittal generally
follows. This has always been unsatisfactory for persons that were considered dan-
gerous because of their mental disorder. Plato already stressed that it was the duty
of the family to keep the acquitted under control: ‘if anyone be insane, let him not
be seen openly in the town, but let his kinsfolk watch over him as best they may,
3  Legal Approaches to Criminal Responsibility of Mentally Disordered Offenders 37

under penalty of a fine’. As described in §3.2.1, similar laws existed in many regions
throughout Europe, until prisons began to be provided not only for punishment but
also for protection of the public. Around the turning of the twentieth century, this
distinction between detention as punishment—proportionate to the extent of guilt—
and as a safety measure, of indeterminate duration as dependent on dangerousness,
became the compromise between classical and modern theorists [22]. As for non-­
responsible mentally disordered offenders, punishment is impossible; in many juris-
dictions—which have adopted this twin track system of sanctioning—safety
measures are provided nonetheless for this group to ensure public protection. French
philosopher Foucault has convincingly argued that around the same time the devel-
oping functioning of Western medicine as a public hygiene—often equalling dan-
gerousness with disorder or degeneracy—ensured that safety measures could be
used as a ‘social defence’ against ‘nonsocial’ groups in society [23]. Especially the
concept of diminished responsibility was used to widen the scope of such measures.
In the century that followed, when psychiatric hospitals with sufficient security
began to be provided along with mental health law which allowed for (civil or crimi-
nal) commitment of mentally disordered, that became the royal way for disposing
of the acquitted that were deemed dangerous. In many jurisdictions the responsibil-
ity doctrine plays an important role in selecting cases for either safety or hospital
(treatment) measures.
This was also the case in Sweden up until abolishing the responsibility doctrine.
As an alternative, not the mental state at the time of the crime but the time of the
criminal proceedings (trial) is indicative for placement in a psychiatric hospital and
thus for not receiving punishment. Especially in jurisdictions that have not adopted
this twin track system of penal sanctioning, placement in a psychiatric hospital is
not necessarily dependent on establishing diminished or non-responsibility. For
example, the (civil) hospital order in England and Wales can be imposed by a crimi-
nal court as well, without an acquittal on the basis of the insanity defence. As the
moral tradition then has no instrumental function with regard to the desired out-
come, it is no wonder that the insanity defence is highly seldom successfully raised.
For forensic psychiatrists, not connecting the responsibility criterion to hospital
placement has the advantage that assessment is not concerned with the time of the
crime (retrospective diagnosis) and, when there are a separate trial of fact and a
sentencing trial, nor with proof of the offence. Such two-phase trials exist, for
example, in Sweden and England and Wales.

3.4 Differences in Substance of the Responsibility Doctrine

3.4.1 T
 he Definition of Insanity: Legal Versus Medical
Competence

As the doctrine of criminal responsibility in relation to a mental disorder can be

regulated in specific provisions in many different ways, nevertheless one common
element can be observed: insanity has to be defined. The applicable mental states
38 M. van der Wolf and H. van Marle

are either summed up in the provision itself or explained in other provisions or

supplements. The Austrian provisions are a random example of the former, as
‘Geisteskrankheit’, ‘geistigen Behinderung’, ‘tiefgreifenden Bewußtseinsstörung’
and ‘dieser Zustände gleichwertigen seelischen Störung’ are mentioned.
For the members of the European Union in 2005 Salize and Dressing conclude:
‘Most terms as used in codes or acts are non-specific, descriptive in nature and to a
large extend outdated. The legal terms have little relation to modern international
classification systems for mental disorders’ (334). References in this chapter to
­legislation in the respective countries are predominantly from their book. As they
are both psychiatrists, that last remark seems to reveal disappointment. However, it
is important to note that in many jurisdictions, the legal definition of mental disorder
is intentionally not related to the psychiatric terminology. The argument may be of
course that psychiatric classifications are often altered, but more important is the
broadness of the criterion and question of who is competent to establish legal insan-
ity. Legal terminology is usually related to a competence of the court to, either with
or without psychiatric advice, establish legal insanity. Competence commonly
entails discretion to ignore the behavioural scientific advice and make another deci-
sion. This discretion is much less logical when the terminology used in legislation
is narrow and similar to that of psychiatry.
This is, for example, the case in Norway, which became clear to the world as this
was at the heart of the debate in the infamous case of terrorist Anders Breivik. The
District Court of Oslo [24] issued an English translation of their verdict, including
a translation of their provision for ‘criminal capacity’: ‘A person who was psychotic
or unconscious at the time of committing the act shall not be liable to a penalty. The
same applies to a person who at the time of committing the act was mentally retarded
to a high degree’. Especially the term ‘psychotic’ is medical language. It not only
led to a discussion about whether his extremist right-wing worldview was delu-
sional but also to a strange interaction between psychiatry and law. As a first set of
behavioural scientists had assessed him as psychotic, the court—apparently not
convinced—asked a second set which concluded to the contrary. The court followed
the second opinion, but in motivating their verdict made use of medical reasoning
beyond its competence [25].
In the Danish provision, the term ‘mental illness’ is used as an equivalent to
‘psychotic’. However after a medical finding of psychosis, it is interestingly still for
the court to decide on the responsibility. Using legal terminology not only under-
lines legal competence but enables the court to include other legal or societal ele-
ments in its decision. For example, in Germany and the Netherlands, the term
‘attribution’ is used, which has a broader meaning within criminal law in light of the
question whether offence behaviour can be attributed to the accused. Nevertheless,
in these countries there has been enough discussion about medical competence, as
the common term ‘Zurechnungsfähigkeit’ or ‘toerekeningsvatbaarheid’ seems to
suggest a rather fixed capacity of the personality. Of course, non-responsibility is
strictly related to the particular offence and not a permanent trait.
Even though the terminology in the different provisions across Europe varies
widely, in practice generally major mental disorders such as a ‘psychotic state’,
3  Legal Approaches to Criminal Responsibility of Mentally Disordered Offenders 39

affective disorders and organic mental disorders seem to fall within their scope [7].
The variation is more extreme when it comes to personality disorders, paraphilia or
substance abuse disorders. For example, in Hungary, personality disorder is explic-
itly mentioned as a condition, which could lead to non-responsibility [3]. When
criminal responsibility is not regarded a dichotomous concept but one of degree
(see §3.4.3), there is more leeway to include such disorders in the doctrine. That is
similar when the question of disposal or commitment to a hospital is not related to
responsibility. For example, in England and Wales, immoral conduct, paraphilia and
substance abuse disorders are explicitly excluded, while personality disordered
offenders are in theory eligible for a hospital order but in practice often excluded on
the basis of the criterion that there is no ‘appropriate treatment’—which replaced
the former ‘treatability’ criterion. Opinions about the treatability of personality dis-
ordered offenders seem to differ, however, as, for example, in the Dutch TBS
(entrustment) order they are overrepresented and treated with a high success rate.
The legal necessity of forensic (psychiatric) assessment also differs if the ques-
tion of responsibility and disposal are not connected. Most jurisdictions legally
require forensic assessment when a defendant is presumed to be mentally disor-
dered. The ECHR, for example, in Winterwerp v the Netherlands [26], requires a
medical assessment for (criminal) or civil commitment. As the moral tradition of
criminal responsibility has more ancient roots than modern psychiatry, medical
assessment has not always been a requirement of course. The concept of madness
has moved over the ages from a ‘religio-astrologic’ to a ‘scientific-organic’ perspec-
tive [27]. What madness is has long been in the realm of common knowledge and
was therefore also assessed by layman. The development of legal standards of proof
and the scientific revolution—including the rise of modern society—have coincided
to a system in which legal decision-making, for example, concerning insanity
requires expert evidence [28]. As psychiatric diagnosis has become more subtle and
the term insanity is no longer reserved for the overtly irrational, the medical compe-
tence has been strengthened resulting sometimes in more tension with its legal
counterpart. In some jurisdictions, for example—especially Denmark is really
strict—it is out of the question that behavioural scientists also advise on anything
other than disorder (and disposal), like the (causal) relation between the disorder
and the offence and the degree of guilt or responsibility. In most countries, the sys-
tem is such that they can advise on these medicolegal concepts but that the court can
substitute its own view on the matter. In practice, the advice is generally followed.
In Portugal, however, a court cannot substitute its own view, but only ask additional
questions or order a new assessment, extending even further the competence of
medical experts (questionably beyond their expertise).

3.4.2 T
 he Test of Insanity: A General Versus a Specific Relation
Between Disorder and Offence

A second element which may appear in provisions of the responsibility doctrine

is a specification of the (functional) capacities that the disorder should have
40 M. van der Wolf and H. van Marle

impaired at the time of the offence in order to establish legal insanity. This is often
called a ‘test’. While most European jurisdictions have such tests in place, two
other approaches exist. As mentioned above, the Norwegian criminal code, for
example, only requires psychosis and no further relation to the offence. In assess-
ment of legal insanity, this is called the ‘medical principle’. It becomes more
medicolegal when a relationship between disorder and offence is required. The
Dutch provision (art. 39 of the Criminal Code) is an example of requiring a gen-
eral (not specified) relation between the disorder and the offence: ‘A person who
commits an offense for which he cannot be held responsible due to defective
development or diseased disturbance of his mental faculties shall not be punish-
able’. As there was no consensus in parliament (at the end of the nineteenth cen-
tury and ever since) as to which specific abilities should be impaired, the law
allows for all sorts of causal relations between the disorder and the offence which
have been formed in legal doctrine, case law and assessment practice. Such a
general relation can also be observed in the citation from judge Bazelon at the
beginning of this article, who speaks of acts as the product of a mental disease,
also referred to as the ‘product test’.
Aristotle already postulated such a test, implying that acts done in the midst of
madness should be considered involuntary and that ‘a fool and a madman’ would
have ‘impaired ability to deliberate’ [29]. In the Digest criteria like ‘not capable of
wrongful intent’, ‘not consisting in the will of the culprit’ and ‘without knowing
what he is doing’ have been formulated (56). Especially in English case law, the
development of tests of insanity can be traced. In a case from the year 1313, the
disordered offender was compared to a child or a ‘nonperson’, not able to distin-
guish good from evil because the moral implications of the act were not under-
stood: it was later referred to as the ‘good and evil test’ [30]. In the case of Rex v.
Arnold (1724), a mentally disordered offender was compared to a ‘wild beast’ that
has no sense of ‘its’ own conduct. This ‘wild beast test’ was more about cognitive
than moral capacity. Acceptance of mere moral defects for the insanity defence,
such as the nineteenth century concept of ‘moral insanity’, has mostly been avoided
throughout history. However, in the famous case of Edward Oxford who shot at
Queen Victoria (1840), the used ‘right and wrong test’ seemed to stress mere moral
capacity, even though the offender was officially acquitted for a ‘lesion of the will’.
It could not prevent the newly found psychiatric diagnosis of ‘homicidal mania’ to
be grounds for many an acquittal in the years following, until it was finally dis-
carded as not being a mental disorder [27]. In the soon to follow landmark case of
Daniel M’Naghten (1843), who shot at the Prime Minister but killed his secretary,
a test was stated in which an offender was not culpable ‘if he was labouring under
such a defect of reason from disease of the mind, as not to know the nature and
quality of the act he was doing; or, if he did know it, that he did not know he was
doing what was wrong’. The moral aspect is more or less dissolved in the cognitive
capacity of knowing that something is against the law, instead of morally wrong.
This phrasing still forms the basis for many insanity doctrines in criminal law
throughout the (Western) world. In addition to tests of cognition, often tests of
volition or the ability to control one’s actions may be added, like the ‘irresistible
3  Legal Approaches to Criminal Responsibility of Mentally Disordered Offenders 41

impulse test’. Eigen [27] proves that also this test has far more ancient roots in
English case law.
In current European provisions, it is common to find both a test of cognition and
volition or control. The Belgian provision only seems to include control. Nevertheless
Salize and Dressing [7] consider the definition of medicolegal concepts amongst
members of the European Union ‘ill-defined and lacking in standardization’, but
that may be explained also by the fact that they include dangerousness or risk for
recidivism in their assessment.

3.4.3 The Scale of Responsibility: Gradual Versus Dichotomous

A greater diversity than in the definition and test of insanity can be observed in rela-
tion to the scale of legal insanity or responsibility. Most European jurisdictions
consider it to be a gradual concept, while some (like Austria, Belgium, Bulgaria,
France) assess it as a dichotomous concept.
It is logical that when a general causal criterion is used, like in the Netherlands,
there is room for (gradations of) diminished responsibility. The Dutch legislator
however chose, in order to ensure consensus between classical and modern theo-
rists, not to mention diminished responsibility in the criminal code, but in practice
it plays an important role [22]. It is remarkable that jurisdictions that have tests of
cognition and/or volition in place differ in their view whether that is an all-or-none
test or that diminished cognition and volition at the time of the crime are also
possible.
Of course the issue of diminished responsibility is of importance to sentencing.
Where non-responsibility leads to the exclusion of punishment, diminished respon-
sibility generally leads to a lesser punishment due to the principle of punishment to
the extent of guilt. In some jurisdictions, like Spain, diminished responsibility is
necessary to be eligible for (certain) safety measures. In the Netherlands diminished
responsibility functions de facto as a criterion for the TBS order, which explains the
high percentage of personality disordered TBS patients in the system. In other juris-
dictions, like Austria and Denmark, disordered offenders not qualifying for com-
plete legal insanity may still be eligible for criminal or civil commitment into a
(forensic) psychiatric hospital.
In jurisdictions within the United Kingdom, diminished responsibility is not
related to the insanity defence at all—it is not a matter of degree but of a different
nature. It serves as a mitigating factor in sentencing, mainly in the special case of
murder to avoid a mandatory life sentence. This is substantively engineered by
changing the mens rea element of murder into manslaughter [31]. This was derived
from the humanitarian approach, originally in Scottish case law, to pardon mentally
disordered offenders in capital cases [9]. The citation from Plato in §3.2.1 suggests
a diminished responsibility of a similar principle, as the consequences for the per-
petrator are less severe in case of a killing by a madman, as he does not seem to be
considered completely blameless. Even though it has been suggested that dichoto-
mous concepts are ‘peculiarly foreign’ to psychiatry, it is understood that the
42 M. van der Wolf and H. van Marle

dichotomy is also being preserved by the judiciary to avoid more influence of psy-
chiatrists on legal decision-making [32]. The gradual or dimensional approach to
responsibility may indeed have more ‘face validity’ but automatically adopts prob-
lems in the reliability of assessment. Indeed the Dutch experience has shown that
even something like ‘percentage responsibility’ can be developed in practice in
which there are far too many gradations than can scientifically be distinguished [33,
34]. At present the debate focuses on five versus three gradations [22]. Maybe they
can look to Portugal for a compromise, as they have four.

3.5 Discussion

As universal as the diagnostics of medical concepts are, as culture-specific are the

diagnostics of medicolegal concepts. Even though the moral tradition of not holding
mentally disordered offenders criminally responsible seems to have similar roots
across Europe, the legal context and the national perspective on its contents create a
wide variety of doctrines and consequent assessment practices. This may hinder the
exchange of knowledge and best practices amongst European forensic behavioural
scientists and the equal treatment of mentally disordered offenders throughout
Europe. However, as placement of patients is usually done on treatment needs and
the level of dangerousness and not on the basis of (the degree) of responsibility, the
doctrine may serve more as a distinguishing criterion in theory only, suggesting that
there may be more commonalities at the level of routine practice [7]. Nevertheless,
the precariousness of the doctrine and its connection to central aspects of criminal
law seem to justify that a national support base is needed.
For most jurisdictions it can surely be argued that, as mentioned in an Editorial by
the Harvard Law Review [35], ‘a basic ambivalence in society towards mentally dis-
ordered offenders’ exists. The tradition is being criticized for leaving possibly severe
crimes unpunished and a demand for restoration unanswered, possibly even leading to
people taking the law into their own hands. When, as described, Plato s­ uggests exile
as a sanction for murder while insane, he seems to take such considerations into
account. Other critiques—mentioned and disputed by Morse for example [36]—
include the diagnostic challenge (if not impossibility) of reconstructing the offenders
state of mind during the offence, the distraction from meeting the needs of psychiatric
patients in prison and the suggested relation to the heavily debated concept of free
will. Abolishing the doctrine, relabelling it or limiting its use, are possible reactions to
these critiques. For example, a few states in the United States have abolished the
insanity defence, while other states have used a milder solution through rewording the
verdict ‘not guilty by reason of insanity’ into ‘guilty but mentally ill’, to preserve the
expressive function of attributing guilt [3]. But from the other end of the ambivalence,
the abolishment in Sweden is intuitively felt to be too much of a break from the moral
tradition to be satisfactory, and changes to the system are in progress [37].
What goes for Europe in general seems to be applicable to criminal responsibil-
ity in Europe as well: we are united by a distant moral tradition and divided by justi-
fied cultural subtleties.
3  Legal Approaches to Criminal Responsibility of Mentally Disordered Offenders 43

Take-Home Messages
• The moral tradition of not holding mentally disordered criminally respon-
sible for certain offences seems to have similar roots across Europe in
Hebrew and Roman law and Greek philosophy, while the church influ-
enced its further development.
• Responsibility doctrines in European jurisdictions differ according to their
context within criminal law and procedure and their possible relation to
sentencing law and placement of mentally disordered offenders in a
(forensic) mental hospital.
• Responsibility doctrines in European jurisdictions differ on c­ ulture-specific
issues as the definition of legal insanity, the tests of insanity (the required
incapacities) and the view on the scale of responsibility.
• These differences may hinder the exchange of knowledge and best prac-
tices concerning forensic assessment amongst European forensic behav-
ioural experts, but placement of patients is usually done on treatment needs
and the level of dangerousness and not on the basis of (the degree) of
responsibility.

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Michiel van der Wolf  legal scholar and psychologist, is a lecturer in criminal law and forensic
psychiatry. Writing this chapter finished in the Spring of 2016.

Hjalmar van Marle  is an emeritus professor of forensic psychiatry.

New Developments in Legal Systems
and Their Impact on Forensic Psychiatry 4
Hans-Jörg Albrecht

4.1 Introduction

Forensic psychiatry has well established relations to the legal system, in particular
the criminal justice system. The relationship has grown stronger over time and has
diversified. It is asserted also that mental health systems in Europe look back on
marked progress in the last half century. The relationship between forensic psychia-
try and criminal justice has been influenced by theory and research criticizing nega-
tive side effects of long-term detention in forensic hospitals and the strong stigma
placed on the mentally ill with associating insanity and crime. This in turn had
encouraged the development of policies of decarceration, deinstitutionalization, and
community-based supervision and treatment [1]. Reform debates on the insanity
defense and related law amendments, for example, in Ireland, Scotland, and
England/Wales, in fact are still based upon this line of reasoning when attempting
to modernize legal language, to bring legal language closer to forensic psychiatry,
and, beyond that, to reduce stigmatizing effects which might be associated with the
label of “insanity” [2, 3, p. 50].
The interface between forensic psychiatry and the law was formed by the funda-
mental assumption that criminal punishment may only legitimately be imposed if
the criminal act was carried by culpability which in turn requires free will (and free
choice between behavioral options). The assumption of free will is based on cogni-
tive capacity to discern right from wrong and the capacity to control one’s acts.
Mental conditions impairing either cognitive or control capacity affect free will and
diminish or exclude culpability but have to be proven through expert (psychiatric)
witnesses. Furthermore, the focus on mental illness within the framework of crimi-
nal law is also explained by the strong belief that some mental illnesses cause crime

H.-J. Albrecht
Max Planck Institute for Criminal Law and Criminology, Freiburg, Germany
e-mail: h.j.albrecht@mpicc.de

© Springer International Publishing AG, part of Springer Nature 2018 45

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_4
46 H.-J. Albrecht

(in particular violent crime) and that psychiatry may deliver treatment which cures
mental illnesses and reduces the risk of relapse in crime. The evolution of modern
forensic psychiatry has been linked to several developments among which better
understanding of the relationship between mental illness and criminality, the elabo-
ration of legal tests of insanity, new methods of noncustodial treatment of mental
disorders, and the changes in attitudes and perceptions of mental illness among the
public are described as key achievements [4, p. 87]. However, new developments in
forensic psychiatry are rather driven by a different set of issues and controversies.
Among these issues conflicts between a welfare-based approach of crime control,
punitive responses to crime, and concerns for security stand out [5, pp. 114–116] as
does the significant shift away from a medical approach to mentally disordered
offenders toward a rights-based approach. Of course, the question of how mental
conditions are associated with crime, in particular violent crime, still is pursued in
research [6, 7], and the role of forensic psychiatry in making decisions on culpabil-
ity of offenders continues to trigger debates in forensic and legal arenas as do ques-
tions of which mental problems should be considered to impact on culpability, on
criminal responsibility, and ultimately on sentencing [8, 9]. But, it is in particular a
growing concern for human rights-adjusted mental health legislation in general and
the legal status and (basic) rights of mentally impaired individuals which results in
an increasingly dense web of legal rules and doctrines directing forensic psychiatric
practices and provides for new challenges.
From the 1990s on, a comparative and European look at forensic psychiatry,
forensic hospitals, and mental law attracted increasingly interest [10, 11]. To begin
with, growing relevance of comparative forensic psychiatry is explained by a com-
mon trend in sciences to advance knowledge and innovation and improve practices
through looking across borders [12]. Migration and an increasingly culturally and
ethnologically heterogeneous nature of European societies then have contributed to
raising interest in comparative studies in forensic psychiatry. But, while significant
interest in comparative analysis of procedural and substantive criminal law can be
noted in Europe, legal disciplines seem to be less interested in comparative forensic
psychiatry law, and only few comparative studies address forensic experts in crimi-
nal proceedings, substantive criminal law, and related jurisprudence addressing
criminal responsibility and mental illness or legal consequences of being judged not
responsible of having committed a criminal offense. Almost all of the comparative
studies dealing with legal aspects of forensic psychiatry since the 1990s are initiated
and carried out by psychiatric/psychological disciplines [10, 13, 14]. The emphasis
in these comparative studies is placed on internationally consented definitions and
diagnosis of mental illnesses, the impact of forensic expertise on judicial decision-­
making and on the consequences of findings of insanity on the disposition of crimi-
nal offenders.
The interest in comparative legal studies on insanity, crime, and criminal law
today is also pushed by widening legal angles through which legitimacy of judicial
cooperation is analyzed. While international cooperation in legal matters in the last
decades has been mainly driven by concerns for effective containment of terrorism
and serious (organized) and cross-border crime, judicial decisions on extradition
4  New Developments in Legal Systems and Their Impact on Forensic Psychiatry 47

today have also to consider how mentally ill offenders will be treated in jurisdic-
tions requesting extradition. In the judgment Aswat v. the United Kingdom (appli-
cation no. 17299/12) 14 April 2013, the European Court of Human Rights (ECtHR)
has held that a schizophrenic detained in the UK should not be extradited to the
USA as there would be a violation of Art. 3 European Convention of Human Rights
(ECHR, prohibition of inhuman treatment). The Strasbourg Court observed that “…
his extradition to a country where he had no ties and where he would face an uncer-
tain future in an as yet undetermined institution, and possibly be subjected to the
highly restrictive regime in ADX Florence (a super maximum security prison),
would violate Article 3 of the Convention.”
More specifically, the creation of a “common space of freedom, security, and
justice” in the European Union (initiated through the Tampere program (2009) and
regulated in Title V of the Treaty on the Functioning of the European Union), fur-
thermore European policies of harmonization and mutual recognition of decisions
in penal matters, and the establishment of European networks of criminal justice-­
related professions have underlined the importance of systematic collection of com-
parative legal information and internationalizing forensic psychiatry in the field of
education and training as well as in its practices [15]. The interest of legislators in
Europe in knowing about comparative mental health legislation and practices before
amending the law [16] then has contributed to raising awareness about large varia-
tion in legal frameworks dealing with mentally ill offenders and the role of forensic
psychiatry in the configuration of pathways to forensic care and treatment [13].

4.2 A Shift of Paradigm: Rights-Based Approaches

Most important in changing the legal frameworks within which forensic psychiatry
operates in Europe (and increasingly on a global level) has been a common and
today uncontested human rights perspective serving as a fundamental benchmark
[17, p. 257]. In Europe, the human rights perspective has been strengthened through
the Council of Europe and the European Union and what has been called a paradigm
shift in favor of rights-based approaches to individuals with mental problems ([18,
19, p. 11] even notes a patients’ rights revolution). The ECHR and jurisprudence of
the ECtHR are of relevance when deciding on detention and treatment of mentally
ill offenders. As early as 1979, the ECtHR has started to develop jurisprudence on
fundamental questions of dealing with persons (and criminal offenders) of “unsound
mind.” The decision on “Winterwerp v. The Netherlands” is still one of the most
cited in the field of law and forensic psychiatry and marks the beginning of the
jurisprudence of the ECtHR on restrictions of liberty justified with an “unsound
mind” (Art. 5 §1e ECHR). The “Winterwerp v. The Netherlands” judgment held
that Art. 5 §1e ECHR does not provide for a comprehensive and binding definition
of an “unsound mind.” The ECHR leaves room for the legislator when defining
unsound mind, mental illness, or insanity as its meaning is considered to be continu-
ally evolving (and changing). European legislators therefore are not obliged to pro-
vide for an exact definition of what establishes an “unsound mind.” Laws on mental
48 H.-J. Albrecht

conditions and criminal responsibility shall be able to accommodate advances in

scientific knowledge and corresponding changes in the definition of “insanity.”
However, no arbitrariness is allowed in laws authorizing detention of individuals
suffering from mental problems. A statutory basis has to be in place which requests
medical expertise as a basis for judicial decisions and which allows for certainty and
predictability. From the perspective of Art. 3 ECHR (prohibition of torture and
inhuman, degrading punishment/treatment), the ECtHR held also that withholding
adequate treatment (which must not be carried by intent on the side of the authori-
ties) will trigger a verdict of inhuman or degrading treatment (ECtHR, M.S. v. The
United Kingdom (Application no. 24527/08), 3 August 2012).
On a global level it has been the advent of the United Nations “Disability
Convention” (ratified today by most European countries) which has brought funda-
mental changes and challenges for both criminal law and forensic psychiatry [20].
The Disability Convention has been hailed as a major step forward in the protection
of human rights of mentally ill criminal offenders [19], but it entails difficult legal
questions, yet to be resolved [20, 21].
Fundamental rights bear also on civil and criminal committal proceedings and
the enforcement of judicial decisions placing mentally ill offenders in psychiatric
hospitals. Particular relevance here have the question of “legal capacity” and the
problem under which condition interference with legal capacity (and Art. 8 ECHR
protecting privacy) may be justified [22, p.  11]. In general, although somewhat
delayed, patients detained in psychiatric hospitals today in Europe are entitled in
principle to the same rights which are available to sentenced (and fully criminally
responsible) prisoners.
The role and tasks of forensic psychiatry have been shaped then by legal and
political developments which give security, public protection, and protection of
individual victims top priority [23]. Security is sought through identifying danger-
ous individuals and adjusting criminal law-based responses to the interest of pro-
tecting the public and individual victims (see, e.g., Bill C-14 amending the Mental
Regime (Part XX.1) of the Canadian Criminal Code, [23]). Release from secure
placements of criminal offenders is made dependent on assessments of future dan-
gers. Predictions of dangerousness are requested today before deciding on detention
and release from detention. A focus on security and comprehensive security policies
encourage the use of long-term and/or indeterminate deprivation of liberty. Particular
concern in this context can be noted for violent crime and sexual crime (in particular
pedophiles).
Indeterminate detention in psychiatric hospitals is based on the assumption that
a criminal offender suffering from mental problems should be detained as long as
the danger of future crimes linked to these mental problems persists [24].
Conventional legal thinking assumes that the interest of protecting the public from
serious crime outweighs the interest of the offender in freedom and may serve—
independent from the possibility of treatment and cure—as a justification of detain-
ing an offender in a psychiatric hospital [24, 25]. With placing the focus on public
protection, however, placement in a secure psychiatric hospital adopts a character of
preventive or incapacitating detention. Public protection evidently encourages also
4  New Developments in Legal Systems and Their Impact on Forensic Psychiatry 49

the designation of certain categories of mentally disordered offenders as a particu-

larly “high risk” [23, p. 49]. The latter approach departs from individualizing risk
assessment and is therefore also at risk of infringing on the right to be judged on the
basis of the facts of an individual case. Furthermore, the security concerns do not
only create conflicts with rights-based approaches but turn against policies favoring
community-based treatment and reduction of stigma.
Forensic psychiatry thus moved to the field of assessment of dangerousness and
general security policies which are rather remote from the core area of psychiatric
practices and expertise. This has contributed in forensic psychiatry to a rising ten-
sion between punishment and security on the one hand and treatment and reintegra-
tion on the other hand [26]. Forensic psychiatry is placed in a social and political
environment which tends to widen professional accountability. Accountability of
forensic psychiatry today goes beyond compliance with good medical practice
applied to patients with mental disorders and includes observance of fundamental
rights of patients as well as effective containment of dangers for public security [27,
p. 454]. Forensic psychiatry therefore today operates under an increasingly dense
web of legally defined conditions which affect in particular also questions of treat-
ment once guided only by medical expertise, standards of good medical practice,
and the best interests of the patient.
The shift toward a rights-based approach to mentally ill persons [18] started on
the international level decades ago with the “Declaration on the Rights of Mentally
Retarded Persons” proclaimed by General Assembly resolution 2856 (XXVI) of 20
December 1971. The United Nations Principles for the Protection of Persons with
Mental Illness and for the Improvement of Mental Health Care (1991) deal in detail
with the rights of persons admitted to mental health care and emphasize standards
of involuntary placement and treatment. The International Covenant on Civil and
Political Rights provides for a comprehensive set of individual rights which in prin-
ciple apply also for the mentally ill. The United Nations “Anti-Torture Convention”
prohibits inhuman, degrading treatment and punishment as well as torture and
establishes besides basic legal standards a system of supervision and monitoring
which is focused on places of detention (including psychiatric hospitals). A compre-
hensive Convention on the Rights of Persons with Disabilities and its Optional
Protocol, 13 December 2006 addresses issues of mentally ill persons, in particular
questions of legal capacity and detention of the mentally ill.
In Europe, soft and hard law affecting forensic psychiatry and forensic patients
principally has been issued through the Council of Europe. Recommendation No R
(83)2 on legal protection of persons suffering from mental disorder placed as invol-
untary patients (1983) was supplemented by Recommendation 1235 (1994) on psy-
chiatry and human rights. Recommendation No (99)4 as of 23 February 1999
establishes basic principles concerning the legal protection of incapable adults. A
“White Paper” on the protection of the human rights and dignity of people suffering
from mental disorder, especially those placed as involuntary patients in a psychiat-
ric establishment [28], preceded Recommendation (2004) 10 concerning the protec-
tion of the human rights and dignity of persons with mental disorders.
Recommendation CM/Rec (2009) 3 addresses monitoring the protection of human
50 H.-J. Albrecht

rights and dignity of persons with mental disorder. Particular legal relevance for
European forensic psychiatry has then the European Convention on Human Rights
and the European Convention against Torture. Within the framework of the ECHR,
particular relevance for forensic psychiatry comes with the prohibition of torture
and inhuman or degrading treatment and punishment (Art. 3), the right to liberty
(Art. 5), the right to a fair trial (Art. 6), and the right to private life (Art. 8).
The focus on (human) rights of mentally ill individuals has also brought changes
in the institutional framework which is established to monitor compliance with
international and European laws and standards in legislation and forensic psychiat-
ric hospitals. Particular emphasis is placed on all kinds of detention facilities
because deprivation of liberty is assessed to expose detainees to an elevated risk of
maltreatment and abuse.
Important elements in the rights-based approach to forensic patients and deten-
tion conditions concern monitoring by independent commissions and effective
access to legal review systems [22, p.  10]. Monitoring of (forensic) psychiatric
facilities and mental health-related law comes through several avenues. International
conventions and the supranational framework of human rights protection:
Oblige states to report on how conventions are implemented. State reports are then reviewed
by a committee which advises as to where and how implementation should be improved.
Provide for individual complaint procedures through which individuals are entitled to
bring allegations of violation of fundamental rights before an independent court or an inde-
pendent committee.
Establish independent commissions mandated with visiting places of detention. Visits
result in reports addressing problems of implementation and forwarded to governments.
Require establishment of independent national structures authorized to visit places of
detention.
Allow ad hoc investigations carried out by rapporteurs or commissioners appointed by
the United Nations or other supranational bodies.

United Nations conventions relevant for forensic psychiatry (International Covenant

on Civil and Political Rights, UN Convention against Torture, UN Disability
Convention) contain a procedure through which State parties on a regular basis or
on request report on how the respective convention is implemented. State reports are
due at certain intervals or at the request of those committees established to examine
reports and monitor implementation of State Parties obligations. In the case of the
International Covenant on Civil and Political Rights, the Human Rights Committee
has the mandate to review state reports and make suggestions and recommendations
to the State parties. The UN Convention against Torture provides for a Committee
against Torture, and the United Nations Disability Convention establishes the
Committee on the Rights of Persons with Disabilities.
The ECHR does not establish a State reporting system. But instead, the ECtHR
has jurisdiction over cases brought through an individual complaint procedure and
alleging violations of fundamental rights enshrined in the ECHR after domestic
judicial appeals are exhausted. The judgments of the ECtHR have to be imple-
mented by national governments. The Court, furthermore, can order that damage is
paid by the government to those applicants whose rights have been found violated.
4  New Developments in Legal Systems and Their Impact on Forensic Psychiatry 51

Then, the ECtHR has developed a procedure which places those European states at
particular scrutiny from which a multitude of similar cases originate indicating a
systemic problem. The so-called pilot-judgment procedure was invoked in the judg-
ment ECtHR W. D. v. Belgium (application no. 73548/13, 6 September 2016). It
was held that Belgian practice of detaining offenders with mental disorders in prison
psychiatric wings where they do not receive adequate care and treatment exhibits a
systemic problem. The problem results in a constantly increasing number of cases
where Belgium routinely is found in violation of Art. 3 ECHR (prohibiting inhuman
treatment through withholding adequate care for mentally disordered offenders) and
in violation of Art. 5 §1 ECHR (infringement on the right to liberty as detention
does only comply with Art. 5 §1 ECHR if the link between the purpose of detention
and the actual conditions of detention is broken). Belgium was given a period of
2 years to solve the systemic problem, and proceedings in all similar cases (approxi-
mately 40) were adjourned.
An individual complaint procedure is also provided through the Optional
Protocol to the International Covenant on Civil and Political Rights, by the UN
Convention against Torture and the Disability Convention. These committees may
receive complaints brought by individuals alleging violations of rights guaranteed
by the conventions. Individual complaints are examined by the committees. The
findings and assessments of the committee result in communication and consulta-
tion with the state which was found in breach of individual basic rights. This proce-
dure, however, other than proceedings before the ECtHR, does not result in a
judgment binding the state that has violated individual rights. Furthermore, the
committees may examine particular situations through launching inquiries.
The European Committee for the Prevention of Torture (CPT) was established to
monitor effective implementation of the European Convention against Torture
(which prohibits torture as well as inhuman and degrading punishment or treat-
ment). Monitoring is carried out in the form of regular visits of all those places in
member states where persons are detained. This includes besides prisons also foren-
sic hospitals. Reports on findings of such visits are forwarded to the government
which should respond to the findings and proposals as to how to adjust conditions
of detention and related practices to the standards of the Anti-Torture Convention. A
similar monitoring system has been adopted through the Optional Protocol to the
Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment. A Subcommittee on Prevention of Torture has the task to visit places
where persons may be deprived of their liberty in State parties in order to prevent
conditions of detention which may result in risks of cruel, inhuman, or degrading
punishment or treatment. Recommendations of the Subcommittee on Prevention
will be discussed in a dialogue with state authorities on possible implementation
measures.
The United Nations Convention against Torture and the Disability Convention
oblige State parties in Optional Protocols to introduce national (and independent)
bodies which have the right to visit places of detention (and psychiatric facilities) in
order to examine whether conditions comply with the standards. The United Nations
Convention against Torture seeks to establish a system of regular visits undertaken
52 H.-J. Albrecht

by an independent body which will monitor also conditions of detention (and result-
ing risks of maltreatment and torture) in forensic psychiatric hospitals. The
Disability Convention requires State parties to put in place a structure mandated
with implementing and monitoring the convention (Art. 33). Art. 16 §3 of the
Disability Convention obliges State parties to introduce effective monitoring of all
facilities and programs designed to serve persons with disabilities by independent
authorities. Effective monitoring must extend also to forensic hospitals. In Europe,
the CPT monitors the implementation of the obligation to have independent moni-
toring mechanisms in place (see, e.g., CPT 2013, §127 for forensic psychiatric hos-
pitals in Portugal).
Finally, the United Nations and the Council of Europe through Human Rights
Commissioners provide for a general possibility to monitor places of detention and
to launch investigations into particular areas in order to monitor implementation of
human rights. In Europe, the European Commissioner of Human Rights has made
mental health law, psychiatric treatment, and forensic hospitals a particular issue in
reports as of 2008 and 2012 [22, 29, 30].
The particular focus of human rights instruments on places of detention and a
legally endorsed and generalized suspicion that individuals deprived of liberty are
at a particular risk of infringements of basic rights have moved also forensic psy-
chiatry into the spotlight of monitoring and supervision. And, nongovernmental
organizations, among them also organizations critical of forensic psychiatry,
increasingly influence not only the making of international human rights instru-
ments but also jurisprudence resulting from individual complaint procedures and
monitoring of forensic hospitals.

4.3  Changing Sociopolitical Climate

A
and Changing Practices

Looking at practices of forensic psychiatry, internationally still significant variation

can be observed. Comparative data, specifically describing forensic psychiatry are
not available on the international nor on the European level, but general data on
mental health systems show that Europe counts some 7.4 psychiatrists per 100,000
of the population while in Africa the rate amounts to 0.07 psychiatrists per 100,000
[31, p. 53]. This enormous gap points to a quite different relevance of forensic psy-
chiatry in criminal justice systems of various world regions (most probably also to
differences in the relevance of mental disorders for criminal justice practices) and
raises furthermore the question of how modern communication technology can con-
tribute to alleviate the problem of access to forensic psychiatric and psychological
services [32]. However, significant differences in the rates of psychiatrists per
100,000 of the population can be also observed in Europe (and OECD countries, see
[33, p. 25].
Comparative data on civil and criminal commitments to forensic hospitals in
Europe do not exist. This is considered a general problem which creates obstacles
for assessing “quality and effectiveness of the various legal frameworks and
4  New Developments in Legal Systems and Their Impact on Forensic Psychiatry 53

forensic care provisions” throughout the European Union member states [34,
p. 446]. In some European countries, a significant increase in the number of inmates
held in forensic hospitals was observed during the last decades (see, e.g., [35] for
Germany; [36] for Austria). The increase is explained by a rise of admissions to
forensic hospitals and by an increase in the average duration of detention in psychi-
atric hospitals ([35, p. 35]; see also [37]). Swedish research has shown that duration
of confinement in forensic psychiatric hospitals is particularly marked for violent
offenders [38, p. 641]. In Germany, (non-violent) sexual offenders experience the
longest periods of detention in a psychiatric hospital [35, p. 38]. The increase in the
number of admissions and the increase in the average length of confinement may be
assumed to reflect security concerns and lower (legal) thresholds of committing
criminal offenders to psychiatric hospitals and increasing reluctance to release
offenders from forensic detention [25]; it might be also a result of strict and effec-
tive containment of long prison sentences (and life imprisonment) in countries
where individual guilt has been given priority over deterrence and incapacitation in
sentencing. This in turn might have made resort to detention in psychiatric hospitals
more attractive [39].
While the question of what determines sentencing practices and whether sen-
tencing is biased and discriminating against immigrants and ethnic minorities has
received significant attention since the 1980s, research on biased admissions to
forensic psychiatric hospitals is scarce. Evidence from the UK points to marked dif-
ferences in admissions for different ethnicities [40]. In Denmark, an ethnic minority
background has been found associated with higher rates of involuntary admissions
to psychiatric hospitals and involuntary treatment. In particular for men, an ethnic
minority background correlates with involuntary admission to psychiatric care [41,
p. 9]. Furthermore, it is assumed that a significant share of prisoners detained in
regular prisons suffers from psychiatric problems and does not receive adequate
treatment [42–45]. Mental health problems among criminal offenders include per-
sonality disorders and alcohol and illicit drugs problems. The magnitude of mental
health problems in prisons is associated with high suicide rates [46]. The pilot-­
judgment procedure initiated through the judgment ECtHR W. D. v. Belgium (appli-
cation no. 73548/13, 6 September 2016) against Belgium underlines the significance
of this problem.
The sociopolitical climate within which forensic psychiatry operates has changed
significantly in the last decades as have changed penal systems and policies guiding
the development of criminal law and punishment. While there is still concern for
marginalization and stigmatization of criminal offenders diagnosed with mental dis-
orders (see, e.g., the proposal of the Law Reform Commission (for England/Wales)
2013, 46 to replace insanity by a lack of ability to conform to the law due to a “rec-
ognised medical condition”) and new treatment optimism has been found to emerge
slowly after decades of treatment and rehabilitation pessimism [47], the victim of
crime and potential victims of crime have moved irrevocably into the penal policy
arena and with them new legislation which seeks to empower victims of crime and
to protect effectively victims of crime also in criminal proceedings against mentally
disordered offenders [48]. However, the issue of victims’ rights in (criminal or
54 H.-J. Albrecht

mental health) proceedings against offenders with mental disorders has not yet been
explored in detail (for a North American perspective, see [48, 49]).
Criminal justice systems once focused on the criminal offender (and rehabilita-
tion) now seek to accommodate the needs and interests of victims and in particular
to serve interests of potential victims. New concern for crime victims seems to fuel
on the one hand calls for tougher sentences and the appetite for criminal punishment
and on the other hand interest in more security through incapacitating dangerous
criminal offenders. Both, the appetite for punishment and the interest in incapacita-
tion seek solutions in long periods of secure confinement. Placement in psychiatric
hospitals as a consequence of complete absence of or diminished criminal responsi-
bility of criminal offenders certainly may be considered to have incapacitating
effects. Penal commitments to forensic psychiatry regularly still come in the form
of indefinite deprivation of liberty which will be terminated only if dangerousness
has been reduced effectively and reduction is confirmed by psychiatric expertise
(see, e.g., [24]). However, in Norway the Breivik case has shown that incapacitation
through indefinite commitment to a psychiatric hospital (which is based on a finding
of lack of criminal responsibility) will not necessarily meet public expectations and
find public approval [50]. Public attitudes on mental illness and legal dispositions of
the mentally ill offender evidently are still influenced by the belief that acquittal
based on insanity will result in lenient treatment and possibly quick release of
insane offenders [48] and that a too wide conception of insanity will negatively
impact on criminal law-based crime prevention and deterrence [9]. The case of John
Hinckley in the USA underlines the significant influence high-profile cases involv-
ing forensic psychiatry may have on legal frameworks as do cases preceding recent
reform of the insanity defense statute in Canada [23]. But, despite calls for complete
abolition of the insanity defense (or a finding of lack of culpability due to mental
disorder, see [24, p. 77]), abolition policy evidently did not find wide support (see,
e.g., the New Zealand [51, p. 30]). Sweden so far remains the only country where in
principle all mentally ill offenders are held criminally responsible and treatment
needs are accommodated in the sentencing decision as well as in the enforcement
process ([52]; see also [53] for ongoing debates on reforming the “insanity defense”
in Sweden).
No uniform development can be noted for criminal justice policies with respect
to mentally disordered offenders in Europe. While rights-based approaches seek to
strengthen the position of the mentally ill in criminal proceedings, concerns for
victims and public security tend to move criminal law and punishment toward
emphasizing accountability and just desert.

4.4  riminal Responsibility and Mental Disorders:

C
Challenges

The United Nations Disability Convention, however, when recognizing legal capac-
ity (Art. 12 §2) also of persons suffering from mental problems has been interpreted
as requesting abolition of “a defense based on the negation of criminal
4  New Developments in Legal Systems and Their Impact on Forensic Psychiatry 55

responsibility because of the existence of a mental or intellectual disability” [54,

p. 47]. Instead, it is argued, “disability-neutral doctrines on the subjective element
of the crime should be applied, which take into consideration the situation of the
individual defendant” [54, p. 47]. In fact, the ongoing debates on the consequences
Art. 14 of the Disability Convention will have on how insanity (or mental problems)
will be dealt with in criminal justice systems reveal that the convention had deserved
a more in-depth discussion of its possible legal consequences for mentally disor-
dered criminal offenders and the rules governing the disposition of mentally disor-
dered offenders. It demonstrates also growing influence of nongovernmental
organizations critical of both detention in general and forensic psychiatry. If the
Disability Convention urges for a radical departure from conventional approaches
and requests a complete prohibition of deprivation of liberty based on the existence
of any disability, including mental disorders or intellectual deficits, then a funda-
mental question of alternative practices and suited criminal law-based legal regula-
tions of mental disorder turns up [21]. Contrasting Art. 14 1 (b) of the Disability
Convention stating plainly that “the existence of a disability shall in no case justify
a deprivation of liberty” with Art. 5 §1e ECHR allowing for deprivation of liberty of
persons of “unsound mind” results then in an open dissent. The ECHR and the
United Nations Disability Convention are headed evidently in different directions.
The Disability Convention would be also a significant move away from the basic
standards established through the United Nations Principles for the Protection of
Persons with Mental Illness and for the Improvement of Mental Health Care (1991).
These include in Principle 16 fundamental standards to be complied with when
authorizing involuntary admission to a mental health facility and with that acknowl-
edge that detention based on the finding of mental disorders may be legitimate.
While unanimous conviction prevails that the ECHR recognizes differential
treatment of persons of “unsound mind” to be legitimate, a strict interpretation of
the Disability Convention as outlined above seeks to minimize and ultimately out-
law what is assessed to be discriminatory practices [55, p. 25]. A conflict emerges
also when looking at Art. 12 of the Disability Convention and the concept of legal
capacity. The ECtHR continues to recognize a mental disorder as justifying limita-
tion of legal capacity, but the Commissioner for Human Rights has found that “the
European human rights system has not yet fully incorporated the paradigm shift
envisioned in the CRPD towards granting persons with disabilities a primary right
to support in their decision-making” [30, p. 16].
The interpretation of Art. 14 adopted by the Committee on the Rights of Persons
with Disabilities ([56], No. 7) refers to discussions of the scope of Art. 14 during the
drafting which resulted in rejecting a limitation of prohibition of detention based on
a finding of disability alone. Also detention based on a combination of insanity and
dangerousness is considered to be discriminatory and in violation of Art. 14.
Although jurisprudence of the European Court of Human Rights applies strict stan-
dards as to the conditions under which a person of “unsound mind” may be detained,
Art. 5 e clearly states that an “unsound mind” is a legitimate ground for deprivation
of liberty. And, judgments of the ECtHR, while recognizing the existence of the
Disability Convention, reiterate that detention of a mentally disordered person “may
56 H.-J. Albrecht

be necessary not only where the person needs therapy, medication or other clinical
treatment to cure or alleviate his condition, but also where the person needs control
and supervision to prevent him, for example, causing harm to himself or other per-
sons” (ECtHR, Case of Stanev v. Bulgaria, Application no. 36760/06), Judgment,
17 January 2012, no. 146). Even where no treatment is envisaged (or possible), the
ECtHR considers detention in compliance with Art. 5 ECHR if “the seriousness of
the person’s condition in the interests of ensuring his or her own protection or that
of others” (ECtHR, Case of Stanev v. Bulgaria, Application no. 36760/06),
Judgment, 17 January 2012, no. 157).
The ECHR is a child of the 1950s and an era when an “unsound mind” did not
raise concerns when it came to justifying deprivation of liberty (nor did it raise con-
cerns as “vagrancy” is also still a ground listed in Art. 5 §1 and justifying detention).
Mental disorders were assessed to raise the risk of violent crime or self-harm [57,
58]. And, an additional judicial finding of dangerousness in terms of risks of future
crime based on psychiatric expertise and a precise statutory framework allowing for
fair proceedings was considered to present sufficient protection of human rights.
But, lack of or diminished culpability due to an unsound mind not only justifies
deprivation of liberty in a psychiatric hospital and possibly involuntary treatment.
Lack of culpability carries also protection of criminal offenders of unsound mind
from harsh punishment (and protection of criminal children either completely
exempt from criminal responsibility or considered to have diminished culpability),
an issue also raised under international law addressing the question of eligibility for
the death penalty. International law requests that persons of unsound mind should
not be sentenced to death nor be executed (see the United Nations Safeguards guar-
anteeing the rights of those facing the death penalty, 25 May 1984). And, evidently,
most European State parties did not see problems arising from Art. 14 for national
criminal codes regulating the connection between insanity, criminal procedure, and
punishment when signing and ratifying the Disability Convention. So far, only the
reservations of The Netherlands and Norway—introduced when ratifying the
Disability Convention—declare that these State parties understand the convention
to allow “for compulsory care or treatment of persons, including measures to treat
mental illnesses, when circumstances render treatment of this kind necessary as a
last resort, and the treatment is subject to legal safeguards.” For England/Wales
Peay [55, p. 25] stated that the Government has been in “something of a state of
denial” (about non-compliance with the Disability Convention). Norway confirmed
its position in the State Report 2015 ([59], No. 112) underlining that Art. 14 must be
read as prohibiting deprivation of liberty based solely on a judgment of unsound
mind and that corroboration of this interpretation is found in the legislation and
practice of State parties to the Disability Convention. This interpretation is sup-
ported by the Human Rights Committee’s General comment no. 35 on Article 9
(liberty and security of person) of the International Covenant on Civil and Political
Rights [60, p. 19].
The Committee on the Rights of Persons with Disabilities, however, continues to
urge State parties to bring standards and tests regarding “unfitness to stand trial” or
“unfitness to plea” as well as legal rules determining deprivation of liberty of
4  New Developments in Legal Systems and Their Impact on Forensic Psychiatry 57

persons with unsound mind in line with Art. 12 and Art. 14 of the Disability
Convention (see, e.g., [56, 61]; see also [29]). Support in favor of such reforms is
voiced by nongovernmental organizations neither affiliated with law nor with foren-
sic psychiatry and taking sides with those considered victims of (forensic) psychia-
try. NGOs have gained significant influence in the drafting of international standards
(and conventions) and in the interpretation of human rights law.
The position of the Committee on the Rights of Persons with Disabilities obvi-
ously is based upon two premises.
A finding of lack of culpability (or denying criminal responsibility) based on an “unsound
mind” carries risks of stigma and exclusion which must be contained effectively.
Nondiscrimination requests criminal offenders diagnosed with an “unsound mind” must
be treated as are treated those offenders found fully responsible and only be deprived of
liberty when adjudicated guilty of a criminal offence.

Partisans of the position that the Disability Convention should be interpreted as

allowing for different procedures, treatment, and dispositions of persons (and
offenders) of unsound mind invoke the culpability principle which insists on full
cognitive capacity and capacity to control one’s acts as necessary conditions of
criminal culpability and criminal punishment and as conditions to participate
actively in fair trial proceedings. A criminal trial concerns a charge of criminal
wrongs and responsibility for such wrongs. Legitimacy of criminal proceedings
therefore depends on defendants able to understand these charges and to respond
adequately [62, p. 446]. A criminal trial involving persons who do not comprehend
their situation and therefore are not in a position to defend themselves effectively
and, moreover, punishment inflicted on an offender whose cognitive or control
capacity during the criminal act was seriously impaired would result in verdicts of
“unusual” or “inhumane” treatment and punishment, an infringement on human
dignity, and violations of the fair trial principle [20]. Interpretation of Art. 12 §2 and
14 thus is decisive for the legal framework which regulates in criminal procedural
law how offenders of “unsound mind” are processed and in substantive criminal law
which legal consequences may result from a disability attributed to mental
illnesses.
Most criminal justice systems today provide for alternative procedures if a crimi-
nal suspect (or criminal defendant) is found to be insane and lacking culpability
[10]. Alternative procedures may be applied if the defendant is assessed to be unfit
to stand trial (or to plead) before trial procedures started. In this case either diver-
sion to mental health proceedings or alternative criminal proceedings (if a criminal
code provides for a second track of measures of rehabilitation and security) are initi-
ated. The difference is important though as the ECtHR will assess justification of
deprivation of liberty in proceedings where a criminal court motivates a committal
to a psychiatric hospital by a criminal offense committed in a state of unsound mind
(and continuing dangerousness) on the basis of Art. 5 §1a (lawful detention of a
person after conviction by a competent court, see ECtHR Case of Klinkenbuss v.
Germany, Judgment 25 February 2016). If an offender is diverted to the mental
health system, then Art. 5 §1e, detention of persons with an unsound mind, will be
58 H.-J. Albrecht

applicable. Here, proceedings may result in commitment to psychiatric hospitals if

dangerousness is established. In case a criminal trial has started, either proceedings
are terminated (and alternative procedures begin) or the defendant is acquitted and
referred to the mental health system or (in systems with a second track of measures
of rehabilitation and security) committed to a psychiatric hospital by the criminal
court. A finding of not guilty because of an “unsound mind” and dangerousness fol-
lowed by a committal to a psychiatric hospital will then open a range of questions
related to involuntary placement in forensic psychiatry. Here, involuntary treatment
raises issues with respect to Art. 12 and 14 of the Disability Convention.
In general, current reforms of unfitness to stand trial and to plead seem to
acknowledge that diversion from the regular criminal process should be a “last
resort” to be applied only if the capacity to participate effectively in trial pro-
ceedings is lacking and impairment of that capacity cannot be compensated
[63, p. 3].
With respect to German criminal law, Pollähne [21] has suggested to bring insan-
ity rules in line with the prohibition of discrimination through wording used in the
provision which regulates the consequences of a “mistake of law.” The result would
be a general exclusion of culpability for all offenders who when committing a crimi-
nal offense lacked comprehension of the wrongfulness of the act. While such an
approach in fact reflects a general and not discriminating ground for establishing
lack of culpability, it does not account for those conditions which do not impair
cognition but affect the capacity to control the act. Moreover, significant differences
between various grounds now hidden under the umbrella of “lack of comprehen-
sion” still would call for different responses. The reason to excuse an act committed
under the condition of a “mistake of law” normally is found in the complexity of
legal regulations (in particular those applicable in the economy, commerce, or taxa-
tion), sometimes also in significant cultural differences in assessing the wrongful-
ness of certain acts [64]. However, this type of excuse will not result in a need of
further measures as such a defense may work only once. Lack of comprehension as
a consequence of a mistake of law regularly is eliminated through the criminal trial
itself. While some psychological or psychiatric conditions may have also only tem-
porary effects on comprehension and criminal culpability, others will continue to
impair cognitive and control capacity. Along more or less the same line of argu-
ments and from the viewpoint of common law, compliance with the Disability
Convention (or interpretation of Art. 12, 14 by the Committee) is sought through
“subjectifying” criminal defenses and replacing insanity defenses by general
defenses which justify or excuse if the offender believed in circumstances that, if
true, would have amounted to justification or excuse of the offense [20]. Also here,
impairment of control capacity would not be included, and also here, the problem
will be just moved below the surface of “subjectifying.” Of course, the most impor-
tant question following the statement that an offender believed in circumstances
which would justify an act of homicide will be why the offender believed so. And,
it will certainly make a difference whether the offender believed that a gun was
pointed toward him or her or whether the offender believed that another person is
part of a large-scale conspiracy ultimately aimed at destroying the world.
4  New Developments in Legal Systems and Their Impact on Forensic Psychiatry 59

Thus, the debate on how the Disability Convention should be interpreted reflects
at the same time a basic conflict about how broad the insanity defense or exculpa-
tion based on insanity should be and a conflict about legitimate grounds for broad-
ening or restricting insanity defenses. Calls for restrictions (or complete abolition)
of insanity defenses are not justified with a possibly damaging loss of deterrence but
with protecting human rights (and human dignity) of disabled persons. Withholding
criminal responsibility (and blame) because of insanity is equated with denying that
a person can be addressed as a “reasonable” person, as a fellow participant (or fel-
low citizen), and an equal in legal practices [62, p. 449, 65]. And, behind that rea-
soning two suspicions hide. A first suspicion is well entrenched and asserts that a
special defense of insanity furthers stigma and exclusion and, moreover, “perpetu-
ates the extremely damaging myth that people with mental disability are especially
dangerous or especially lacking in self-control” [20] and ultimately exposes indi-
viduals with mental disabilities to discriminatory and inhumane practices (in par-
ticular in the form of involuntary medical treatment) and the risk of long-term and
disproportionate confinement in psychiatric hospitals. A second suspicion concerns
that the emergence of new clinical pictures might be triggered not by a legitimate
attempt to exempt the inculpable from criminal punishment but by the interest to
incapacitate offenders considered to be particularly dangerous through opening a
pathway into closed psychiatric institutions.
It cannot be expected that law and practice of State parties to the Disability
Convention will in the foreseeable future change toward complete abolition of
insanity defenses, diversion of those assessed unfit to stand trial and plead to alter-
native proceedings, and involuntary commitment to forensic hospitals [66]. In fact,
if commitment to psychiatric hospitals (either justified with a criminal offense com-
mitted while mentally disordered and dangerousness caused by that mental disor-
der) would not be acceptable because of discriminating against the disabled, then of
course, the perceived need of public protection (or protection of individuals from
self-harm) would not desist to call for consideration. But, what could be alternative
legal grounds which would be on the one hand “de-linked from disability” and on
the other hand “neutrally defined so as to apply to all persons on an equal basis” [66,
p. 175]? A neutral definition will certainly be wider than current criminal justice and
mental health systems provide for in Europe and therefore carry the risk of widen-
ing powers of detention. The ECHR today allows detention only when imposed by
a criminal court in response to a criminal offense (Art. 5 §1a) or when falling under
other enumerated grounds listed in Art. 5 ECHR (among them an “unsound mind”)
and thus restricts the state’s power of detention. The only option of a neutrally
defined ground which would not discriminate against disabled persons will be “dan-
gerousness.” It can be assumed that introduction of dangerousness would find mas-
sive political support in face of ongoing debates on how to respond effectively to
terrorism, violent crime in general, and sexual offenses and how to prevent such
crimes of persons not assessed to be of unsound mind nor close to preparing or com-
mitting such offenses (acts which would carry a sentence of imprisonment). The
German Federal Constitutional Court when dealing with the question of (retroac-
tive) preventive detention in Germany which was judged to be in violation of the
60 H.-J. Albrecht

ECHR by the ECtHR has found that a mental disorder which does not exclude or
diminish criminal responsibility and therefore falls well below the threshold of
insanity defenses established by criminal law may invoke nevertheless the ground
of “unsound mind” to justify detention in a treatment facility (Federal Constitutional
Court, 2 BvR 1516/11, 15 September 2011). The ECtHR has held that the finding of
a mental disorder (sexual deviance), the necessity of treatment, and a high risk of
serious crime comply with detention based on Art. 5 §1e (unsound mind). The
ECtHR said also that detention justified properly with requirements coming with
detaining a person of unsound mind will not amount to “punishment”, but remain
treatment (ECtHR Bergmann v. Germany, Judgment, 7 January 2016). Sexual pred-
ator laws in the USA exhibit a parallel line of reasoning [67]. Neither the line
between criminal responsibility and exclusion of criminal responsibility nor the line
between a psychologically completely healthy person and one mentally disordered
and dangerous but criminally responsible can be drawn through applying psychiat-
ric methods. These lines will ultimately be drawn by law and politics [53, p. 48].
But there is still the question of how far forensic psychiatry should be removed from
determining these lines.
De-linking mental disorders, culpability, and dangerousness completely would
reduce the potential of discrimination to the disadvantage of mentally disordered
offenders at the expense of risks of widening the powers to detain dangerous per-
sons in general significantly. It would also entail a shift in the role of forensic psy-
chiatry which moves away from providing expertise on the links between mental
disorder, culpability, and dangerousness toward expertise on links between mental
disorders, the necessity (and possibility) of treatment, and dangerousness. The
emphasis of psychiatric expertise, however, would be then on prediction of
dangerousness.
But, the Disability Convention has brought new momentum to a process of reas-
sessing some crucial issues associated with linking an unsound mind and criminal
law. Reassessment refers to the recognition that persons with disabilities should not
be seen merely as recipients of charity or medical attention but as holders of rights
who have “inherent human dignity worthy of protection equal to that of other human
beings” [18] and are capable to make valid decisions. Placing emphasis on propor-
tionality and addressing the problems allegedly associated with findings of unfitness
to stand trial and involuntary commitment to psychiatric hospitals result in scruti-
nizing particularly diagnosis of medical conditions establishing insanity, link
between various mental disorders and (violent) crime, and predictions of
dangerousness.

4.5  djudication, Detention in Forensic Psychiatric

A
Hospitals, Dangerousness, and Proportionality

From the viewpoint of mental disorders, adjudication of criminal offenders carries

several risks. An offender might be found guilty, although a mental disorder has
impaired cognitive or control capacity and is subject to a more severe penalty than
4  New Developments in Legal Systems and Their Impact on Forensic Psychiatry 61

would have been imposed if a mental disorder would have been correctly diagnosed.
Punishment then may also result in serving time in prison facilities where adequate
treatment cannot be provided. Adjudication may result in a finding of not guilty due
to insanity and in indeterminate confinement in a psychiatric hospital because the
offender is assessed to exhibit a high risk of re-offending. Here, also the problem of
correct diagnosis arises as arise the problems of assessing dangerousness. Seen
from the outcome of criminal proceedings, both classifications as culpable and
insane may work to the advantage and the disadvantage of criminal defendants.
The indeterminate nature of a criminal commitment to a psychiatric hospital has
drawn criticism in particular from the viewpoint of proportionality. In fact, a sen-
tence of detention in a psychiatric hospital may result in a period of confinement far
longer than a prison sentence imposed on a culpable defendant for a similar crime
(see, e.g., ECtHR Case of Klinkenbuss v. Germany, Judgment 25 February 2016,
where the complainant had spent 28 years in forensic psychiatric hospitals for crim-
inal offenses committed as a juvenile which could have resulted if found completely
culpable in a maximum prison sentence of 10 years). And, even less serious crimes
therefore carry a risk of lengthy detention for offenders for whom lack of criminal
responsibility or diminished criminal responsibility has been found. In some
European criminal code books, proportionality has been recognized as limiting
imposition and duration of confinement in a psychiatric hospital (also the Supreme
Court of Canada has adopted the “least onerous and least restrictive test to the type
of detention imposed as well as on conditions of continued detention, [23]). In the
German criminal code, §62 stresses that detention in a psychiatric hospital may not
be ordered if—in face of seriousness of adjudicated criminal offenses and those
predicted—detention would be disproportionate. Italian criminal law introduces
proportionality criteria from another angle and provides in Art. 222 of the penal
code that the minimum duration of detention in a psychiatric hospital is 10 years for
crimes for which the law provides a life sentence and 5 years for crimes that pro-
vides sentences of less than life. In Switzerland, the maximum period of detention
in a psychiatric hospital has been set at 5 years (§59 Swiss Criminal Code). Detention
can be renewed for another 5 years in case of persisting dangerousness. The Dutch
criminal code restricts an order of treatment in a psychiatric hospital for offenders
not held responsible to 1 year (sec. 37). An “entrustment order” (terbeschikkingstel-
ling, sec. 37a) may be imposed if the offender suffers from a mental disease or
defect must not have necessarily impaired culpability. Duration of entrustment
orders is graded on the basis of crime seriousness and dangerousness and may
amount to indeterminate confinement in case of serious violent crime.
In Germany, indeterminate committal to a psychiatric hospital received wide-
spread public and professional attention in the wake of the “Mollath case” [25, 68].
Mollath—accused of assaulting his wife and acts of vandalism—was assessed
insane and acquitted. The criminal court, however, imposed a measure of rehabili-
tation and security in the form of indeterminate detention in a psychiatric hospital
where he remained for 7 years for criminal offenses which would have attracted a
suspended prison sentence at most if he would have been found guilty. Debates on
proportionality and effective safeguards against abuse of forensic psychiatry
62 H.-J. Albrecht

ensued and resulted in an amendment of the criminal code in 2016. While the
Association of German Defense Councils had suggested to place an absolute limit
of 8 years on commitment to forensic psychiatric care and to restrict forensic psy-
chiatric detention to serious crimes of violence [69], the amendment which ulti-
mately went into force in 2016 now provides in §67d (6) German Criminal Code
that confinement to a psychiatric hospital may not exceed 6 years unless it is estab-
lished that the mental condition carries a high risk of relapse in serious crimes of
violence. Implementation of proportionality is moreover sought by intensifying
judicial review of persisting dangerousness on the basis of (external and indepen-
dent) psychiatric expertise.
In general, a trend toward restricting indefinite detention in a forensic psychiatric
hospital to a risk of serious crimes of violence (and acts endangering health and life
of others) seems to gain support. Nevertheless, strict and effective implementation
of the proportionality principle will be possible only by imposing mandatory limits
on the total period of detention [70, p. 232, 71, p. 6].
Another avenue toward proper consideration of proportionality is opened through
the development of alternatives to secure placement (or closed psychiatric institu-
tions) in the form of community-based forensic psychiatry and implementation of
the “last resort” principle and ultimately also through adopting multi-agency
approaches which seek to provide coordinated and intensive support in after-release
settings and in the community [72]. Resorting to community-based forensic psy-
chiatry as a less intrusive way of dealing with mentally disordered offenders is
backed up by evidence that community-based systems are not more costly than
closed psychiatric care and, if well managed, tend to provide better-quality services
[22, p. 9]. In Italy, legislation went into force in 2014 which (after deinstitutional-
ization policies implemented in the 1970s) is considered a second revolution in
forensic psychiatry [34]. The aim of the new legislation is to dismantle and ulti-
mately abolish large forensic psychiatric facilities and to transfer responsibility for
forensic psychiatric care (and for insane and dangerous criminal offenders) to the
national mental health system. Current forensic psychiatric hospitals shall be
replaced by small-scale residential facilities (not more than 20 inmates) or
community-­based psychiatric care. The implementation of the new law shall result
in a process of discharging patients of forensic psychiatric hospitals to small resi-
dential facilities and into community care and restrict new admissions to “excep-
tional cases” [34, p.  445]. Although the process of closing conventional forensic
psychiatric hospitals was in some aspects delayed, it was concluded “that the trans-
fer of forensic hospital patients to community psychiatric services has been a posi-
tive experience overall” [73, p. 37].
The question of whether decisions on criminal culpability were wrong and have
resulted in consequences to the disadvantage of criminal defendants is not only trig-
gered by the risk of indeterminate confinement as a consequence of wrongfully
assuming a defendant was mentally ill but also by a wrong finding of criminal cul-
pability because of the risk of harsher criminal punishment than deserved. A finding
of guilt does not automatically result in indeterminate confinement to a psychiatric
hospital but (if dangerousness is not established) in mitigation of punishment or
4  New Developments in Legal Systems and Their Impact on Forensic Psychiatry 63

complete acquittal. A wrongful conviction may also result from false confessions
resulting from interrogation practices which expose suspects with mental problems
and intellectual deficits to particular risks. Moreover, an offender suffering from
mental disorders has to be admitted to adequate care and treatment. According to
the ECtHR’s jurisprudence, withholding appropriate care and treatment may raise
issues of inhuman and degrading punishment/treatment (Art. 3 ECHR). Art. 2
ECHR and the right of life may be invoked in case mental problems result in suicide
(see ECtHR, Renolde v. France (application no. 5608/05), 16 October 2008). Health
screening of offenders when admitted to pretrial detention or prison as a first safety
measure therefore must be introduced in prison laws.
Prediction of dangerousness has become a prominent topic affiliated with secu-
rity [74, 75]. An assessment of dangerousness is necessary and requested by crimi-
nal law before imposing preventative detention or committing an offender to a
psychiatric hospital. Also decisions on dangerousness may be wrong. However, a
finding of dangerousness implies that two types of mistakes can occur. Dangerousness
may be wrongly assumed, and an offender is admitted to a forensic psychiatric hos-
pital although this offender would not relapse into crime. On the other hand, an
offender may be judged to be not dangerous, will not be detained, and after release
commits a serious crime. The first type of mistake (or error), of course, will not be
easily detected. The second type of errors results regularly in significant public
attention, in pressure on the legislator, and possibly also in criminal charges and/or
civil law suits against those deemed to be responsible of wrongly assessing danger-
ousness [27, 76, p. 455]. Of course, errors coming with statements on probabilities
may not be equated with mistakes, and all methods of prediction will result in errors.
But, expectations of the public and the judicial system tend to request minimization
(or complete exclusion) of errors and move forensic psychiatry toward an “unfairly
defensive” role through neglecting, first, the probabilistic nature of assessments of
dangerousness and, second, the closeness of dangerousness associated with mental
disorder and dangerousness associated with “free will” [73]. Some higher courts in
Europe, in fact, have held that prediction of dangerousness may not be based on
actuarial instruments alone but must be based on clinical assessments of individual
conditions. The German Federal Court of Justice has found that an assessment of
dangerousness following the application of Static 99 was insufficient (German
Federal Court of Justice), decision as of 30. 3. 2010, 3 StR 69/10). The Swiss
Federal Court has set aside judgments of trial courts which assessed dangerousness
on the actuarial instrument FOTRES alone (Swiss Federal Court 6B_772/2007, as
of 9. 4. 2008; 6B_424/2015 as of 4. 12. 2015).
Some European countries have established Criminal Case Review Commissions
which are mandated to examine convictions of persons when doubts arise as to the
wrongfulness of a finding of guilt (see [77, p.  215] for England, Scotland, and
Norway). In other countries, reopening of criminal proceedings (to the advantage of
a convicted criminal offender) applies on grounds of new evidence which may result
in an acquittal (or mitigation of punishment). A study on reopening criminal pro-
ceedings in Switzerland has found that new evidence on mental problems of con-
victed offenders played a significant role for granting a retrial in serious criminal
64 H.-J. Albrecht

cases. New psychiatric expertise was decisive in three out of four convictions for
homicide [78, p. 1161]. However, a major problem seems also to be wrong confes-
sions from mentally disordered suspects [79, p. 148].

4.6 Involuntary Treatment and Coercion

in Forensic Psychiatry

Wide acceptance of the rights-based approach to the treatment of defendants with

mental problems has also resulted in refueling well-entrenched debates on involun-
tary treatment in psychiatric settings. Reasoning based on Art. 12 §2 of the Disability
Convention asserts that also in the context of involuntary treatment jurisprudence
and standards established by the ECtHR (and state legislation and practices) is
“incompatible with … Art. 12 §2 and should no longer be regarded as valid” [80,
p.  415]. Involuntary treatment has been scrutinized in jurisprudence of constitu-
tional courts and the ECtHR. But, the ECtHR in principle holds that involuntary
treatment may be legitimately applied if it was persuasively shown to be necessary
(Gennadiy Naumenko v. Ukraine (application no. 42023/98, 10. 2. 2004) and if a
statutory basis allows for predictability of forced treatment and fair proceedings
(ECtHR, X v. Finland (Application no. 34806/04), 19 November 2012).
The German Federal Constitutional Court in a landmark decision as of 23 March
2011 (2 BvR 882/09) has declared involuntary treatment to infringe on the right of
physical integrity as well as the right to self-determination. According to the reason-
ing of the Court, impaired capacity of discernment might even intensify and deepen
an infringement if a mentally impaired person experiences involuntary treatment as
particularly threatening. The focus is placed on the impact involuntary psychiatric
treatment has on the body of a patient in the form of physical side effects of medica-
ments but also on the impact certain medicaments have on mental processes in the
brain. In particular the latter is considered to have the capacity to affect the core of
personality (privacy). However, the Federal Constitutional Court argued that in
principle and under very narrowly defined conditions involuntary treatment may be
justified. The Court asserts also that the Disability Convention does not prohibit
involuntary treatment. On the contrary, Art. 12 §4 of the Disability Convention is
interpreted as implicitly recognizing legitimacy of involuntary treatment because it
requests implementation of proportionality and strict rules which protect against
conflicts of interest and abuse. According to the 2011 judgment, substantive and
procedural law must be in place which recognizes the relevance of the (natural) will
and is guided solely by an interest of the detained person him-/herself to restore the
foundations of self-determination (and the capacity to work toward release to the
community). Involuntary medication of a detainee cannot be justified by a danger
for others (detention prevents such danger effectively). A basic condition of invol-
untary treatment concerns convincing evidence that lack of capacity of compre-
hending the necessity of specific treatment is caused by the mental problem which
shall be treated. From this starting point, the Court outlined requirements for legis-
lation authorizing involuntary treatment in (forensic) psychiatric hospitals. First, a
4  New Developments in Legal Systems and Their Impact on Forensic Psychiatry 65

law on involuntary treatment has to follow a standard test of proportionality.

Treatment must be suited to restore the capacity of self-determination and present
the least intrusive measure. Proportionality in this sense requests a serious attempt
to achieve consent based on full information (on treatment, aims, and possible
effects) and on trust (see in this respect United Nations Principles for the Protection
of Persons with Mental Illness and for the Improvement of Mental Health Care
1991, principle 11 §9 requesting full information also in cases where legal capacity
is impaired). Then, proportionality must be established through weighing the pre-
dictable benefit of treatment against the burden placed on the involuntarily treated
person which should result in a clear preponderance of benefits. Second, implemen-
tation of the proportionality principle demands also for procedural safeguards. In
order to allow for effective judicial review, detailed information that a measure of
involuntary treatment is to be applied has to be provided sufficiently early. Another
element in the procedural aspects of proportionality concerns full records of the
process of initiating and carrying out involuntary treatment (see also ECtHR,
Dvořáček v. Czech Republic (application no. 12927/13), 6. 11. 2014, where it was
held that a specific form setting out consent and informing of the benefits and side
effects of treatment would have reinforced legal certainty for all concerned, but the
failure to use such a form was insufficient for a breach of Art. 3 ECHR).
Finally, the particular risks coming with coercion under conditions of detention
call for an independent examination prior to carrying out involuntary treatment. The
German Federal Constitutional Court in this respect invoked principle 11 §6b and
§13 of the United Nations Principles for the Protection of Persons with Mental
Illness and for the Improvement of Mental Health Care 1991 which emphasize the
need for an independent (external) review of decisions related to involuntary treat-
ment. Independent reviews could be done by a custodian, by an ombudsman, or by
a judicial authority. In fact, the conditions outlined include also a model of “sup-
ported decision-making” as required by Article 12 of the UN Disability Convention.
The ECtHR has expressed the view that it shares the opinion of the German Federal
Constitutional Court elaborated in the 2011 decision. Involuntary hospitalization
may be used only as a last resort and in absence of a less invasive alternative, if it
carries true health benefits without imposing a disproportionate burden on the per-
son concerned (ECtHR, Pleso v. Hunagry (Application no. 41242/08), 2 October
2012, no. 66).

Conclusions
Current challenges for forensic psychiatry follow from legal developments which
emphasize rights-based approaches to those assessed to suffer from mental dis-
orders. In particular the Disability Convention has provoked a new debate on
whether and to what extent mental disorders and intellectual deficits may justify
an assessment of lack of or diminished culpability and involuntary admission to
psychiatric hospitals and treatment. Strong concern for fundamental rights of
detainees in forensic hospitals has resulted in increasingly strong monitoring by
independent organizations. Forensic hospitals thus are exposed—as are prisons
or police holding cells—to the suspicion that places of detention are particularly
66 H.-J. Albrecht

prone to risks of maltreatment and abuse. Paramount interest in security and

protection of the public and crime victims has moved forensic psychiatry toward
assessment of dangerousness and assessment of (causal) links between mental
disorders and dangerousness but also toward assessments of alternative methods
(community treatment) as elements in tests of proportionality. Forensic psychia-
try increasingly has to deal with questions which fall outside the core area of
professional expertise and to answer for practices (and results) which are primar-
ily the outcome of legal and policy decision-making.

Take-Home Messages
• Forensic psychiatrists and psychologists should be aware of new develop-
ments in legal systems across Europe, since it affects their daily practice.
• Current legal developments emphasize rights-based approaches to those
assessed to suffer from psychiatric disorders.
• Forensic psychiatric hospitals are exposed to the suspicion that they are
particularly prone to risk of maltreatment and abuse.
• Forensic psychiatry and psychology increasingly have to deal with ques-
tions which fall outside the core area of professional expertise.

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The European Impact on National
Forensic Psychiatry 5
Anton van Kalmthout and Paul Mevis

5.1 Introduction: Relevant European Mechanisms

The central duty of the Council of Europe is to safeguard the fundamental rights of
members of the public. Unsurprisingly, the Council gives particular attention to the
legal position of mentally disordered persons, and specifically their position under
criminal law. The care provided to mentally disordered prisoners during the execu-
tion of sanctions can easily fall short of the required standards. Traditionally, there-
fore, the influence of ‘Europe’ and the involvement of forensic psychiatry are geared
predominantly toward how criminal sanctions and their execution are given shape,
including the intake of mentally disordered prisoners and their transfer to proper
facilities for care and treatment. Nevertheless, the legitimacy of imposing and exe-
cuting criminal sanctions presupposes a legitimate and fair trial. If every ‘normal’
suspect in criminal law is already ‘vulnerable’ in respect of the all-powerful authori-
ties and their daunting criminal law system, this holds all the more true for mentally
disordered suspects. As such, Europe is increasingly shifting to include protecting
mentally disordered suspects during trial. This carries over to the weight that this
matter carries within forensic psychiatry. The following sketches out the principal
existing laws, instruments and documents and how they affect forensic psychiatry
for adults.1
The first instrument that the Council of Europe possesses for safeguarding fun-
damental rights is the European Convention for the Protection of Human Rights

 The separate rules for children are not addressed here.

1

A. van Kalmthout
Department of Criminal Law, Faculty of Law, Tilburg University, Tilburg, The Netherlands
e-mail: a.m.vkalmthout@uvt.nl
P. Mevis (*)
Department of Criminal Law and Criminal Procedure, Erasmus University Rotterdam,
Rotterdam, The Netherlands
e-mail: mevis@law.eur.nl

© Springer International Publishing AG, part of Springer Nature 2018 71

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_5
72 A. van Kalmthout and P. Mevis

and Fundamental Freedoms (‘ECHR’),2 which defines various rights. Complaints

about suspected violations of any of those rights may be brought before the
European Court on Human Rights (ECrtHR). Member States are required to com-
ply with that court’s decisions and, if necessary, amend their national laws accord-
ingly. More important, the ECHR’s system is based on the idea that the Member
States must properly implement the rights enshrined in the ECHR in their national
laws. In addition to this passive approach adopted by the Council of Europe,
another instrument that is relevant to prisoners is the anti-torture mechanism. To
reinforce the safeguard against torture and inhuman or degrading treatment (Article
3 ECHR), a mechanism has been created in which the European Committee for the
Prevention of Torture (CPT) visits locations where people are deprived of their
liberty by instructions of the authorities, to work together with the Member States
to prevent and protect against torture and other inhuman or degrading treatment or
punishment.3 Both these mechanisms play a part in safeguarding mentally disor-
dered members of the public at law and as such have implications for forensic
psychiatry.
Like the Council of Europe, the European Union has in recent years increasingly
influenced the legal position of members of the public with a mental disorder who
find themselves in trouble with the criminal justice system. The European Union’s
involvement in criminal law is aimed primarily at effective cooperation between
Member States in criminal cases. That cooperation is based on the principle that
Member States must trust each other’s legal systems. However, the close coopera-
tion based on this principle is effectively jeopardised if elementary safeguards for
members of the public are not realised at the European level. For example, the
European Court of Justice has put a halt to mutual cooperation in transferring sus-
pects and convicted criminals to Member States where the quality of the prison
system had been established by the ECrtHR, based in part on the CPT’s findings, to
be in violation of Article 3 ECHR. The instruments on which the EU can call to
realise the elementary rights of individuals for purposes of actual and effective
mutual cooperation in criminal cases do not overlap entirely with those of the
Council of Europe: the EU can use directives to force Member States to amend their
national laws. In this context, the vulnerability of suspects that needs protection has
already triggered a ‘Directive on procedural safeguards for children who are sus-
pects or accused persons in criminal proceedings’. However, mentally disordered
suspects can rely only on the European Commission’s Recommendation of 27
November 2013 on procedural safeguards for vulnerable persons suspected or
accused in criminal proceedings,4 and it is unlikely that a directive will follow. In
part this stems from the differences in legal and social traditions of dealing with

2
 For the UN framework, see the International Covenant on Civil and Political Rights.
3
 A mechanism exists at the UN level that is somewhat similar, under the Optional Protocol to the
UN Convention against Torture.
4
 Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable
persons suspected or accused in criminal proceedings 2013/C 378/02. Verbeke et al. [6] advocate
increasing the scope of the measures.
5  The European Impact on National Forensic Psychiatry 73

mentally disordered members of the public, while another issue is that it is much
more difficult to define ‘mentally disordered’ than it is to attach a particular age to
the socially recognisable criterion of ‘child’ or ‘minor’.5 As a consequence, the
simple fact that mentally disordered individuals require additional attention is one
of the most important responsibilities of forensic psychiatry.

5.2  entally Disordered Suspects: Acknowledgement

M
of Their Vulnerability

Once the ECrtHR’s assumption of the vulnerability eo ipso of each ‘normal’ suspect
or accused in the criminal process is accepted, it is a small step to require additional
attention for the heightened vulnerability of other suspects, accused and convicted
persons, as exemplified not only by children but also by mentally disordered sus-
pects. Their heightened vulnerability sometimes needs to be accommodated. This
need for accommodation is underlined by the fact that the ECHR, the ECrtHR and
the EU all assume that despite a mental disorder it is possible to conduct legitimate
criminal investigations against mentally disordered suspects, who may also be sub-
jected to a fair trial despite their disorder. Similarly, the mere execution of a criminal
sanction such as a prison sentence is not automatically deemed to be in violation
of—for instance and in particular—Article 3 ECHR for the sole reason that the
individual so sentenced has a mental disorder. That assumption is essentially cor-
rect: not every mentally disordered suspect or convicted person has a heightened
vulnerability that precludes the legitimacy of the criminal procedure or that must be
accommodated by extraordinary safeguards. In fact, this assumption demands ade-
quate accommodation commensurate to the degree of vulnerability. That accom-
modation should not be merely enabled, or even prescribed, in national law; what
accommodation is required in a concrete situation, and for what reason, is often
impossible for the court, public prosecutor or other criminal justice official to estab-
lish for themselves. Instead, they will often need to call on forensic psychiatry and
rely on the opinion of an expert in that field. Conversely, this means that forensic
psychiatrists will need to familiarise themselves with legal proceedings, their pur-
pose and their scope.
It is important to note here that the criminal procedure in each case consists of a
number of phases: specifically (in the order in which they occur) preliminary
inquiry, prosecution and trial and (if the suspect is convicted) execution of the crimi-
nal sanction imposed. These separate phases are also linked at the level of fair trial,
given that granting a suspect rights and safeguards in one phase may have bearing
on the fairness of the criminal procedure in a subsequent phase. For example, the
ECrtHR assumes that one of the reasons underlying a suspect’s right to legal assis-
tance while being questioned by the police is to avoid miscarriages of justice, which
may occur if the court reaches the wrong decision based on the evidence. With some
disorders in particular, the suspect might be extremely susceptible to suggestion or

 In the EU directive: the age of 18.

5
74 A. van Kalmthout and P. Mevis

fantasy that could cause him to confess to offences never committed.6 It is not with-
out good reason that when considering whether the suspect was given a fair trial
within the meaning of Article 6 ECHR, the ECrtHR always considers the procedure
as a whole, i.e. every related and successive part of the criminal procedure in a par-
ticular criminal case.
It is important here that the need for accommodation and therefore the mental
disorder be identified quickly. The possibility that a suspect has a mental disorder
and that the judicial authorities need to allow for the possible vulnerability and need
for accommodation should be acknowledged in the criminal system from the
moment of the individual’s first dealings with the criminal system—at the latest
when he is arrested on suspicion of having committed the offence. This requires
early screening procedures and mechanisms, to identify any relevant disorders or
illnesses as soon as possible. The result should be an effective link to conclusions
about the possible and viable use of procedural and participation rights by the
accused, if necessary indicating relevant accommodating measures. For a long time,
early screening was not mandatory by international standards. However, this might
change with the relevant provisions of paragraph 4 of the EU Recommendation,
which reads:
Vulnerable persons should be promptly identified and recognized as such. Member States
should ensure that all competent authorities may have recourse to a medical examination by
an independent expert to identify vulnerable persons, and to determine the degree of their
vulnerability and their specific needs. This expert may give a reasoned opinion on the
appropriateness of the measure taken or envisaged against the vulnerable person.

As evidenced by the phrasing of this clause, when establishing and acknowledg-

ing that the suspect has a disorder, the authorities need to be able to call on inde-
pendent experts. It does not stipulate that the vulnerability can only be established
based on the forensic psychiatrist’s opinion; however, such a requirement could be
included in the country’s national laws. Yet in this regard the role of forensic psy-
chiatrists in informing the criminal justice authorities, and specifically the criminal
court or trial judge, is also affected by the fact that Recital 7 contains a warning that
a legal remedy must be available to suspects to protect against any establishment
of vulnerability if it would prejudice the exercise of their fundamental rights. This
risk of prematurely depriving the individual of his rights and responsibilities comes
into play in situations where, for example, the individual’s right to personally par-
ticipate in his trial and actively contribute to his defence might be restricted. It is
precisely for this reason that the decision on the vulnerability and its implications
(both procedural and otherwise) must be made by the court rather than a behav-
ioural specialist such as a forensic psychiatrist. Nevertheless, he needs to be aware

6
 Cf. the infamous Swedish serial killer Sture Bergwall, aka Thomas Quick, who was convicted for
eight murders to which he had confessed but that he had not committed. He was released in 2013
after having spent 22 years in a forensic clinic. For an English-language overview of the case of
Sture Bergwall/Thomas Quick, see https://search.proquest.com/docview/1115056204?accoun
tid=13598.
5  The European Impact on National Forensic Psychiatry 75

of his position and the scope of his advice in this respect. The law (and in particular
criminal law) must provide sufficient reliable procedures for querying such advice
and opinions, for example, by allowing the defence to consult another forensic
psychiatrist. The possibilities in the various countries may be determined by the
degree to which the procedural position tends toward the adversarial or the
inquisitorial.7
In this respect, forensic psychiatry may and should not only be expected to advise
on concrete criminal cases: the field also has a role to play in training criminal jus-
tice officials. This includes developing mechanisms for transforming a vulnerability
that has been recognised in the suspect into effective and modified treatment of that
suspect. This does not appear to happen automatically, even if that vulnerability has
been recognised [1]. It can also be expected of forensic psychiatrists to be able to
distinguish feigned mental vulnerabilities [2]. The first steps toward developing and
implementing a reliable measuring instrument have already been taken at the
European level.

5.3 Fitness to Stand Trial

Although not every disorder should automatically mean that the disordered suspect
must be accommodated in the criminal proceedings, and such accommodations
make it possible to conduct a fair trial of disordered suspects, nevertheless situations
exist where the extent of the suspect’s disorder renders criminal prosecution inap-
propriate. One reason might be that the disordered suspect is entirely incapable of
understanding the prosecution. Prosecution then becomes meaningless if its pur-
pose is to make the individual understand that his actions broke the law and as such
were ‘wrong’. Alternatively, prosecution might be inappropriate if it is evident that
the suspect cannot be held culpable by reason of his disorder, and he can therefore
invoke the insanity defence [3]. Forensic psychiatry is perfectly suited to play a part
in informing the judicial authorities that such a defence is valid. Yet the need to
provide for such modalities for avoiding prosecution does not stem from the ECHR,
though. This changes, though, if the disordered suspect is no longer capable, even
with accommodating measures, of participating in the prosecution brought against
him properly and with a sufficient degree of active involvement. This ability is
referred to as ‘fitness to stand trial’ [4]. How this influences the right to a fair trial
as enshrined in Article 6 ECHR differs according to how adversarial or inquisitorial
the criminal procedure is structured under the relevant Member State’s national law.
Yet to date the ECrtHR has not ruled that Article 6 requires any charges to be
dropped, trials to be suspended or cases to be dismissed. It might be argued that the
articulated influence of a disordered accused’s vulnerability demands a change in
approach, at the level of the ECrtHR and—as a result—under the Member States’
respective laws [5, 6]. This is where forensic psychiatry comes into play. Deciding
whether the suspect is fit to stand trial helps to prevent the administration of

 See also Chap. 1 of this volume.

7
76 A. van Kalmthout and P. Mevis

criminal law where prosecution does not serve any true purpose or interest of crimi-
nal law enforcement; instead, it merely prevents the individual from receiving
proper care outside the scope of criminal justice.

5.4 Fair Trial; Trial Rights

The fact that being prosecuted by the authorities already places any person in a
vulnerable position is reflected in the rights that the phrasing of Article 6 ECHR
grants the suspect in order to conduct a proper defence. These are the right to a fair
hearing, the right to be present during trial and to conduct a defence, the right to
legal assistance, the right to be informed properly and to a letter of rights, the right
to examine all witnesses and, in more general terms, the right to challenge the evi-
dence against him or her, etc. In the wording of the ECrtHR:
The Court accepts the Government’s argument that Article 6 § 1 does not require that a
child on trial for a criminal offence should understand or be capable of understanding every
point of law or evidential detail. Given the sophistication of modern legal systems, many
adults of normal intelligence are unable fully to comprehend all the intricacies and all the
exchanges which take place in the courtroom: this is why the Convention, in Article 6 § 3
(c), emphasises the importance of the right to legal representation. However, “effective
participation” in this context presupposes that the accused has a broad understanding of the
nature of the trial process and of what is at stake for him or her, including the significance
of any penalty which may be imposed. It means that he or she, if necessary with the assis-
tance of, for example, an interpreter, lawyer, social worker or friend, should be able to
understand the general thrust of what is said in court. The defendant should be able to fol-
low what is said by the prosecution witnesses and, if represented, to explain to his own
lawyers his version of events, point out any statements with which he disagrees and make
them aware of any facts which should be put forward in his defence. (see, e.g. Stanford,
cited above, § 30)8

Again, the degree to which the suspect is actually expected to actively exercise
control depends somewhat on whether the relevant criminal proceedings in that
particular country are based predominantly on the adversarial model or on the
inquisitorial model. In many countries, criminal procedure has recently been
experiencing a shift, placing greater demand on the suspect’s responsibility and
ability to properly organise a defence and establish a course of action. A require-
ment that applies in all instances is that the suspect, not just his legal counsel,
must at least be able to comprehend the defence and, while perhaps not fully
controlling the choices made, have at least some understanding of those choices.
While the demands imposed by the ECHR are not exceedingly high,9 that mini-
mum standard must be satisfied. The suspect’s personal involvement cannot be
replaced entirely by the counsel acting for him. If the suspect has a disorder that
heightens his vulnerability, the provisions of Article 6 ECHR incontrovertibly

 ECrtHR 15 June 2004, no. 60958/00 (S.C. v. the United Kingdom), par. 29.
8

 ECrtHR 31 October 2013, 17,416/03 (Tarasov v. Ukraine), par. 98.

9
5  The European Impact on National Forensic Psychiatry 77

mean that effective accommodating measures must be taken for that suspect in
allowance for his heightened vulnerability. The criminal justice authorities have a
positive obligation under the ECHR to ensure that even disordered suspects can
enforce their right to effective participation in the criminal proceedings. Absence
of this accommodation renders a fair trial against the disordered suspect impos-
sible. The European Union’s Recommendation matches this approach adopted by
the ECrtHR, in that it contains some requirements that give further shape to the
conditions for effective participation by suspects whose disordered mental capac-
ity heightens their vulnerability. For example, ‘Persons with disabilities should
receive upon request information concerning their procedural rights in a format
accessible to them’ (par. 8) and ‘Any questioning of vulnerable persons during the
pre-trial investigation phase should be audio-visually recorded’ (par. 13). Similar
to the presumption of innocence, the recommendation introduces a ‘presumption
of vulnerability’: ‘Member States should foresee a presumption of vulnerability
in particular for persons with serious psychological (…) impairments, or mental
illness or cognitive disorders, hindering them to understand and effectively par-
ticipate in proceedings’ (par. 7). The recommendation also identifies another
important theme that applies specifically in respect of vulnerable suspects and in
particular suspects whose vulnerability is heightened by their disordered mental
capacity. Paragraphs 5 and 6 read:
Vulnerable persons should not be subject to any discrimination under national law in the
exercise of the procedural rights referred to in this Recommendation. (…) The procedural
rights granted to vulnerable persons should be respected throughout the criminal proceed-
ings taking into account the nature and degree of their vulnerability.

This non-discrimination principle concerns the risk for which the disordered sus-
pect is protected against himself to such a degree that he is denied any possibility of
effective participation in person. The task of protecting the suspect’s interests dur-
ing the criminal proceedings is then put in the hands of others, in particular his legal
counsel. This presents another possible violation of the right to a fair trial. In part
for this reason, the ECrtHR assumes that a suspect’s legal counsel in criminal pros-
ecution should never fully assume the suspect’s position, to ensure a fair trial despite
the suspect’s disorder.10 Here, the desire to continue the prosecution despite every-
thing, particularly for serious offences, in fact poses a threat to suspects of height-
ened vulnerability.
It is evident that forensic psychiatrists also have an important role to play here,
in shaping and safeguarding the right to a fair trial. Their services can—and in some
cases should—be engaged to inform the criminal court about a particular suspect
fitness to stand trial, what the extent of his vulnerability is in the right to participate
in the criminal proceedings and what additional accommodating measures are
needed to guarantee effective participation of a suspect whose vulnerability is
heightened by a disorder.

10
 Cf. Article 5 of the 2006 UN Convention on the Right of Persons with Disabilities.
78 A. van Kalmthout and P. Mevis

5.5 Execution of Sanctions

In terms of execution of criminal sanctions in respect of disordered suspects and

convicted persons, the legitimacy of the detention is based in part on Article 5
ECHR.  If the criminal sanction is aimed (at least in part) at preventing further
offences (particularly serious offences), a relevant factor is that the detention must
satisfy the requirements of Article 5(1)(a), (e) and (c) ECHR. A factor to consider
here is that prolonged detention after having been convicted in court diminishes the
link to that conviction, and further detention can no longer be based on Article 5(1)
(a). Further lawful detention is then only possible if the procedures, conditions and
structure of the execution satisfy the ECrtHR’s requirements for the legitimacy of
detention on one of the other grounds set out in Article 5(1) ECHR.11 The risk of
new serious offences must be ‘sufficiently concrete and specific’.12 In particular, the
execution must be geared toward locations that offer an environment for care and
treatment.13 Many penal institutions where disordered offenders who pose a risk to
society are held in detention after their conviction do not satisfy this fundamental
condition. Holding the individual in a penal institution that does not offer sufficient
care may constitute a violation of fundamental and human rights. Psychiatric reports
may be both necessary and helpful to prevent these violations. Of particular impor-
tance here is Article 35 of Recommendation No. Rec(2004)10 concerning the pro-
tection of human rights and dignity of persons with mental disorder, which applies
‘the principle of equivalence of care with that outside penal institutions’. Patients
may not be exposed to any discrimination in penal institutions: their care may not
be withheld or reduced simply because they are in prison. This vulnerability is
where independent supervision of mental disorders in penal institutions comes into
play.14
The detention must also be lawful: it must be in accordance with national laws
and with the ECHR. In the latter respect, the ECrtHR in particular requires that the
competent authority must have established the existence of a disorder, based on the
opinion of a behavioural specialist who possesses sufficient medical expertise rele-
vant to the condition or disorder.15
This establishes the importance of forensic psychiatry. The input of this expertise
in relevant proceedings before the criminal court is not only a factor in determining

11
 For example, cf. ECrtHR 17 December 2009, no. 19359/04 (M. v. Germany), and ECrtHR 13
January 2011, no. 6587/04 (Haidn v. Germany).
12
 ECrtHR 17 December 2009, no. 19359/04 (M. v. Germany), par. 102.
13
 ECrtHR 30 July 1998, no. 25357/94 (Aerts v. Belgium), par 48.
14
 Cf. Recommendation Rec(2004)10 concerning the protection of human rights and dignity of
persons with mental disorder, Article 35(4): ‘An independent system should monitor the treatment
and care of persons with mental disorder in penal institutions’.
15
 ECrtHR 5 October 2000, no. 31365/96 (Varbanov v. Bulgaria). The source of these general
requirements is still ECrtHR 24 October 1979, no. 6301/73 (Winterwerp v. The Netherlands), par.
39. More recently, see ECrtHR 2 October 2012, no. 41242/08 (Plesó v. Hungary). See also the
mentioned Recommendation Rec(2004)10 concerning the protection of human rights and dignity
of persons with mental disorder.
5  The European Impact on National Forensic Psychiatry 79

the required standard of lawfulness and legitimacy of the detention required by

Article 5 ECHR in cases involving a mental disorder; it may also apply to its con-
tinuation and for placement in an appropriate environment (either for treatment or
otherwise). In certain circumstances, the disordered individual in question will
require the behavioural specialist’s input to safeguard his rights under the ECHR. The
behavioural specialist informing the court deciding on the detention must provide
an understanding of the disorder and an estimation of the associated risk of repeat
offences, in order to help prevent situations where the disordered individual is pre-
maturely put in long-term detention without any prospect of appropriate treatment
and the possibility of release. Precisely because decisions to detain an individual or
to extend their detention may also be made if the patient/prisoner refuses to cooper-
ate in a behavioural report,16 it can be difficult for the behavioural specialist to
properly carry out that duty to inform the authorities. In many countries, reports
from behavioural specialists will also be considered in the review required by the
ECrtHR for lifelong imprisonment.17
As the European Union’s approach shifts focuses on effective cooperation in
criminal matters, it is clear that this cooperation is under pressure where the stan-
dard of care and humanity in the execution of sanctions falls short of the minimum
required by Article 3 ECHR—and perhaps more encouragingly where the quality of
detention does not meet the positive criteria laid down in Article 10 of the UN’s
International Covenant on Civil and Political Rights. The European Union is not
developing any instruments to increase the quality of detention as such, or at least
not beyond the scope of the 2009 Procedural Roadmap for strengthening the proce-
dural rights of suspected and accused persons in criminal procedure, to ensure coop-
eration in criminal matters. In this respect, it relies on the Council of Europe’s
mechanism. The case law handed down by the ECrtHR in connection with Article 3
ECHR by extension considers the CPT’s opinions and factual findings on the deten-
tion situation in the various Member States of the Council of Europe.
The basis assumption is the same as for Article 6, where the mere fact that the
suspect has a mental disorder that renders him vulnerable does not mean that he
cannot be given a fair trial. What matters is recognising the vulnerability of the
vulnerable suspect and where necessary accommodating that vulnerability. The
same holds true for Article 3 ECHR. The mere fact that a disordered person is sent
to prison after having been convicted and given a criminal sanction, for example, a
prison sentence, does not constitute a violation of Article 3 ECHR.  However,
according to case law of the ECrtHR, that clause does in fact require that the prison
system must at the minimum offer facilities for giving the disordered prisoner
proper care and treatment.18 This does not automatically mean that someone who

16
 ECrtHR 3 March 2015, no. 73560/12 (Constantia v. The Netherlands).
17
 ECrtHR 9 July 2013, nos. 66069/09, 130/10 and 3896/10 (Vinter v. the United Kingdom);
ECrtHR 26 April 2016, no. 10511/10 (Murray v. the Netherlands); and more recently ECrtHR 17
January 2017, no. 57592/08 (Hutchinson v. the United Kingdom).
18
 ECrtHR 26 October 2000, no. 30210/96, (Kudla v. Poland) par. 94. In April 2016, the ECrtHR
published a factsheet entitled ‘Detention and mental health’, summarising the ECrtHR’s case law.
80 A. van Kalmthout and P. Mevis

has been convicted should otherwise be granted his freedom or be transferred to a

mental hospital.19 The limits to Article 3 ECHR emerge principally if the detention
(particularly if it is long) results in a more onerous penalty, and specifically deterio-
ration of the individual’s mental health. This again underlines the particular vulner-
ability of disordered prisoners and specifically their vulnerability in terms of the
ability to assess and complain about the nature and manner of the care and treatment
that they receive (or do not receive) in prison.20 Essentially, three elements together
in particular determine the existence of a violation of Article 3 ECHR:
The Court observes that there are three particular elements to be considered in relation to
the compatibility of an applicant's health with his stay in detention: (a) the medical condi-
tion of the prisoner, (b) the adequacy of the medical assistance and care provided in deten-
tion, and (c) the advisability of maintaining the detention measure in view of the state of
health of an applicant. (see Mouisel, ibid., §§40-42; Melnik v. Ukraine, no. 72286/01, §94,
28 March 2006; and Rivière v. France, no. 33834/03, §63, 11 July 2006)21

Care for mentally disordered prisoners explicitly includes preventive care to

avert suicide, which is often a greater risk in detention than outside. The World
Health Organisation especially advocates properly educating and training prison
staff [7]. While the ECrtHR does not rule out the option of involuntary treatment,
particularly of patients lacking capacity, even in detention it is subject to a strict
requirement of ‘medical necessity’.22 Involuntary treatment must be compliant with
the rules of the Convention on Human Rights and Biomedicine (the Oviedo
Convention of 1997).23 Article 35(3) of Recommendation Rec(2004)10 concerning
the protection of human rights and dignity of persons with mental disorder adds,
‘Involuntary treatment for mental disorder should not take place in penal institu-
tions except in hospital units or medical units suitable for the treatment of mental
disorder’.
The ECrtHR’s criteria should be seen as an effort to apply to mentally disordered
prisoners the more general standards that the ECrtHR applies in cases of sickness.
The court summarised its principle once again in September 2016:
The Court further reiterates that Article 3 of the Convention imposes on the State a positive
obligation to ensure that a person is detained under conditions which are compatible with
respect for human dignity, that the manner and method of the execution of the measure do
not subject the individual to distress or hardship exceeding the unavoidable level of suffer-
ing inherent in detention and that, given the practical demands of imprisonment, the per-
son’s health and well-being are adequately secured by, among other things, the provision of
the requisite medical assistance and treatment (see Kudła v. Poland [GC], no. 30210/96, §
94, ECHR 2000-XI; McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46,

19
 ECrtHR 18 December 2007, no. 41153/06 (Dybeku v. Albania), par. 41.
20
 ECrtHR 18 December 2007, no. 41153/06 (Dybeku v. Albania), par. 41.
21
 ECrtHR 20 January 2009, no. 28300/06 (Slawomir Musial v. Poland), par. 88; see also ECrtHR
18 December 2007, no. 41153/06, (Dybeku v. Albania), par. 42.
22
 ECrtHR 24 September 1992, no. 10533/83 (Herczegfalvy v. Austria), par. 82.
23
 Convention for the protection of Human Rights and Dignity of the Human Being with regard to
the Application of Biology and Medicine: Convention on Human Rights and Biomedicine.
5  The European Impact on National Forensic Psychiatry 81

ECHR 2003-V; and Farbtuhs v. Latvia, no. 4672/02, § 51, 2 December 2004). In this con-
nection, the “adequacy” of medical assistance remains the most difficult element to deter-
mine. Medical treatment provided within prison facilities must be appropriate, that is, at a
level comparable to that which the State authorities have committed themselves to provide
to the population as a whole. Nevertheless, this does not mean that every detainee must be
guaranteed the same level of medical treatment that is available in the best health establish-
ments outside prison facilities. (see, inter alia, Blokhin, cited above, § 137)24

What is remarkable and striking is the assumption that care in detention should
essentially be equal to the care in free society. No reason exists not to apply that
principle to prisoners with a mental illness as well, as enshrined in Article 35 of
Recommendation Rec (2004)10 concerning the protection of human rights and dig-
nity of persons with mental disorder, quoted above.
The European Court on Human Rights reviews this against Article 3 ECHR, by
considering whether that article has been violated. In general, accepted is that a
violation requires a minimum level of severity. Given the nature of the subject mat-
ter and the care for mentally disordered prisoners in the prison system, as one of the
most vulnerable groups in terms of human rights, the Council of Europe provides
‘soft law’ developing further rules for mentally disordered prisoners. For example,
Rule 12.1 and Rule 12.2. of the revised European Prison Rules state:

Persons who are suffering from mental illness and whose state of mental health is incom-
patible with detention in a prison should be detained in an establishment specially designed
for the purpose.
If such persons are nevertheless exceptionally held in prison there shall be special regu-
lations that take account of their status and needs.

These rules assume—in principle—that the prisoner will be transferred to proper

facilities if his mental disorder so necessitates.25 Further examples of how the rules
for mentally disordered prisoners have been given shape can be found in the rules of
the CPT, as mentioned above.

5.6 CPT Standards

Complementary to the judicial retroactive mechanism of the ECtHR, the 1987

European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (ECPT) set up a nonjudicial preventive mechanism to
strengthen the protection of people deprived of their liberty against violation of
Article 3 of the ECHR. A special committee (the CPT) has been set up to monitor
the treatment of people deprived of their liberty. The main task of this committee is
to visit places in the Council of Europe Member States where people are deprived
of their liberty, such as police stations, prisons and psychiatric hospitals. Visits are

24
 ECrtHR 1 September 2016, no. 62303/13 (Wenner v. Germany), par. 55.
25
 See also Recommendation No. R(98) 7 of the Committee of Ministers to member states concern-
ing the ethical and organisational aspects of health care in prison (April 1998).
82 A. van Kalmthout and P. Mevis

carried out by delegations, usually existing of several CPT members, accompanied

by staff members of the secretariat and, if necessary, by additional experts and inter-
preters. As a rule, a medical doctor and a psychiatrist are part of each delegation.
CPT delegations have unlimited access to all places of detention, the right to move
inside such places without restriction and the right to interview persons deprived of
their liberty in private and the right to communicate freely with anyone who can
provide information. It has also unrestricted access to any information—including
medical files and records—it considers necessary to carry out its preventive work.
After each visit, the CPT sends a detailed report to the State concerned. This report
includes the CPT’s findings and its recommendations, comments and requests for
information and responses to the issues raised in its report. These reports and
responses form part of the ongoing dialogue with the states concerned.
Based on the visit reports that are drawn up after the visit, the CPT has devel-
oped general standards for some of the substantive issues, which it pursues when
carrying out visits. These standards, together with the visit reports and the annual
general reports, provide States clear guidelines on how persons deprived of their
liberty should be treated. Even though the CPT standards and reports are not
binding on States, the CPT has developed its own standards and safeguards for
prisons and other places of detention in a more detailed manner than any other
European instrument to be able to monitor conditions in prisons and other places
of detention more objectively [8, 9].26 Over the years, the CPT has become a ‘fact
finder’ for the ECtHR. The jurisprudence of the ECtHR shows that the CPT stan-
dards, as developed over the last 28 years are more and more applied in individ-
ual cases before the ECtHR.  This is especially the case when the ECtHR is
confronted with aspects of detention regarding which the ECtHR has not previ-
ously ruled [10].27
Health-care services for persons deprived of their liberty is a subject of direct
relevance to the CPT’s mandate, because:
An inadequate level of health care can lead rapidly to situations falling within the scope of
the term inhuman or degrading treatment.28

For that reason, the CPT has formulated a set of general criteria and standards
that should be guiding for all health-care services, irrespective of the place of deten-
tion or the mental state of the prisoner or patient. These standards concern amongst
others access to a doctor, equivalence of care, patient’s consent and confidentiality,

26
 R. Morgan, ‘The European Committee for the Prevention of Torture and Inhuman or Degrading
Punishment or Treatment’, in: D.  Van Zyl Smit & F.  Dünkel (eds.), Imprisonment Today and
Tomorrow. International Perspectives on Prisoners’ Rights and Prison Conditions, The Hague:
Kluwer Law International 2001, p.  717; J.  Murdoch, The Treatment of Prisoners. European
Standards, Strasbourg: Council of Europe Publishing 2006, p. 45.
27
 On the relationship between the ECtHR and the CPT and their contribution to an effective and
efficient protection of prisoners against torture and inhuman or degrading treatment or punishment,
see Hagens [12].
28
 3rd General Report (1992) (par.30).
5  The European Impact on National Forensic Psychiatry 83

preventive health care, living conditions, professional independence and profes-

sional competence, medical screening on admission, transmissible diseases (HIV/
AIDS) treatment and prevention, suicide/self-harm prevention, hunger strikes, treat-
ment of sex offenders and detention of prisoners with physical disabilities [11]. The
general character of these standards implies that they also apply to mentally disor-
dered prisoners. However, accommodating these persons in a prison setting means
in daily practice that their psychiatric illness remains untreated which according to
the CPT:
leads to ad hoc measures which may easily constitute inhuman and degrading treatment.29

It is therefore that, in line with Article 35 of Recommendation Rec (2004)10

concerning the protection of human rights and dignity of persons with mental order,
the CPT has repeatedly pointed out that persons suffering from severe mental ill-
ness, requiring psychiatric assessment and/or treatment, should not be accommo-
dated in ordinary prisons, but ‘whatever their legal status, should be assessed and
treated in a medical facility’.30 However, when they still are accommodated in a
prison setting, the consequence should be that they should be treated according to
the specific standards that in addition to these general standards have been formu-
lated for the treatment of involuntary patients in a forensic psychiatric institution. In
this respect, the standards make a clear distinction between the involuntary place-
ment and involuntary treatment procedure. The admission of a person to a psychiat-
ric establishment on an involuntary basis should not preclude seeking informed
consent to treatment. Involuntary placement and involuntary treatment require pro-
cedures that are surrounded by safeguards to avoid inhuman or degrading treatment.
For the involuntary placement and its prolongation, the standards prescribe that the
procedure to order such a placement should offer guarantees of independence and
impartiality as well as of objective medical expertise. Except emergency cases, the
formal decision to place a person in a psychiatric hospital should always be based
on the opinion of at least one doctor with psychiatric qualifications, and preferably
two, and the actual placement decision should be taken by a different body from the
one that recommended it.31 The patient should have the effective right to be heard in
person by the court during placement or appeal procedures, should be entitled to
legal assistance, should receive a copy of any court decision and should be informed
in writing about the reasons for the decision and the avenues/deadlines for lodging
an appeal.32 The same rights apply to the judicial review procedures that according
to the CPT should take place at reasonable intervals.33 Important safeguard is also
that the court when reviewing the placement is informed by a psychiatric expert’s

29
 Visit to Turkey (2004) (par.83).
30
 Visit to ‘The Former Yugoslav Republic of Macedonia’ (2010) (par.93).
31
 Visit to Belgium (2001) (par.144).
32
 Visit to Lithuania (2004) (par.133) and visit to ‘The Former Yugoslav Republic of Macedonia’
(2006) (par.148).
33
 Visit to Switzerland (2011) (par 117) and 8th General Report (1997) (par.56).
84 A. van Kalmthout and P. Mevis

opinion which is independent of the psychiatric institution where the patient is

held.34
Involuntary placement should not be construed as authorising treatment without
his consent. According to the CPT, all medical treatment should be based on the free
and informed consent of the patient. Consequently, every competent patient, whether
voluntary or involuntary, should be given the opportunity to refuse treatment or any
other medical intervention. This means that:
Any derogation from this fundamental principle should be based upon law and only relate
to clearly and strictly defined exceptional circumstances which are applicable to the popula-
tion as a whole.35

Given the potential for abuse and ill-treatment, especially the use of means of
restraint in a psychiatric setting is of particular concern for the CPT. In many of the
establishment visits, the CPT is confronted with an excessive and disproportionate
recourse to means of restraint and with types of restraint that could well be consid-
ered as degrading, such as handcuffs, metal chains and cage beds. In order to pre-
vent the overuse and abuse of means of restraint, the CPT in its 16th General Report
of 2006 has formulated a detailed set of standards that should be guided when psy-
chiatric patients are exposed to instruments of physical restraint (such as straps,
straitjackets or enclosed beds), chemical restraint (medicating a patient against his/
her will for behaviour-controlling reasons) and seclusion (involuntary placement of
a patient alone in a locked room).
According to these standards, a general rule should be that a patient should only
be restrained as a measure of last resort in exceptional situations in order to prevent
imminent injury or to reduce acute agitation and/or violence which may not last
longer than the emergency situation requires. For that reason, the restraint of patients
should be subject of a clearly defined policy. That policy should make clear that
initial attempts to restrain agitated or violent patients should, as far as possible, be
nonphysical (e.g. verbal instruction) and that where physical restraint is necessary,
it should in principle be limited to manual control.36 If in emergency situations
resort to restraint is unavoidable:
It is imperative that every single case of resort to means of restraint be authorised by a doc-
tor or, at least, brought without delay to a doctor’s attention in order to seek approval for the
measure.37

This indicates that the CPT has strong reservations to the practice in many estab-
lishments visited to use blanket consents because:
In the CPT’s experience, means of restraint tend to be applied more frequently when prior
blanket consent is given by the doctor, instead of decisions being taken on a case by case
(situation by situation) basis.38

34
 Visit to Moldova (2015) (par. 171).
35
 3rd General Report (1992) (par.47).
36
 16th General report (2006) (par. 39, 43–44).
37
 Visit to Portugal (2008) (par. 127).
38
 16th General Report (2006) (par. 44).
5  The European Impact on National Forensic Psychiatry 85

Also other standards highlight the responsibility of the medical staff in protect-
ing the psychiatric patient against inhuman or degrading use of means of restraint.
This may be the case if:
The application of restraints is resorted to as a means of convenience for the staff or as a
sanction for perceived misbehaviour or as a means to bring about a change of behaviour.39

It will be apparent that even in the phase of executing criminal sanctions, the
fundamental rights described here assume proper consultation of forensic psychia-
trists and psychologists. Mental disorders must be recognised promptly. It is vital
that sufficient care and treatment be provided. If they are not, not only will the
legitimacy of the detention be queried, the quality of how the detention is given
shape might in fact constitute a violation of Article 3 ECHR. Forensic psychiatry
needs to realise that its experts must, can and wish to help prevent any violations of
the fundamental rights of mentally disordered prisoners. It is important that psy-
chiatrists working at penal institutions also have the job of organising care and treat-
ment for their patients. The medical services offered to persons deprived of their
liberty, irrespective of their legal status or the place where they are accommodated,
should always be based on the principle that medical practitioners act as their per-
sonal doctors. Especially in respect to persons with serious mental disorders in pris-
ons or forensic psychiatric institutions, who are strongly dependent of the medical
specialists, a positive doctor-patient relationship is essential in safeguarding the
health and well-being of these patients. Doctors, psychiatrists and other medical
professionals have a prominent role to play as well in protecting the patient against
ill-treatment. They should always be aware that their decisions or interventions can
result in situations falling within the scope of the term ‘inhuman or degrading treat-
ment’. It is therefore also a matter of principle and medical ethics as is stated repeat-
edly by the CPT that medical personnel should never participate in any part of the
decision-making process resulting in any type of disciplinary sanction. Unlike the
question of the individual’s ‘fitness to stand trial’, even prison psychiatrists are not
required ‘to certify that a prisoner is fit to undergo punishment’.40

Conclusion
The European impact on national forensic psychiatry underlines the need for
proper treatment and procedural safeguards from a human rights perspective. Its
aim is not to avoid law enforcement, but to make it legitimate. This double posi-
tion calls upon forensic psychiatrists to be aware of their position and influence
in the legal process. Essential for their work is not only to diagnose and treat
(properly) but also to realize proper attention for the specific vulnerability of
mentally disturbed citizens toward judicial authorities and to help them in organ-
ising effective accommodating measures for that citizen, in allowance for his or
her heightened vulnerability. In this respect, the European impact is an ongoing
challenge for national forensic psychiatry and the daily work of forensic
psychiatrists.

39
 16th General report (2006) (par. 43).
40
 CPT Standards (73).
86 A. van Kalmthout and P. Mevis

Take-Home Messages
• The first take-home message from this debate is that in fact every person as
suspect in criminal law is in some way vulnerable, because of the over-
whelming power of the authorities and their system. This applies even
more for mentally disordered suspects. Despite a mental disorder, a person
can be subjected to criminal investigation and can be put to (a fair) trial
and/or can be put in prison. But the acknowledgement of vulnerability and
additional accommodation of safeguards to compensate the vulnerability
require the expertise of the forensic psychiatric. The accommodation of the
safeguards depends on the degree of vulnerability, in which decision will
be based on the opinion of forensic psychiatrics.
• The second message to take home is that the European impact on national
forensic psychiatry can no longer be denied. The CPT standards of safe-
guards, which should be in order in every Member State, and the influence
of the ECrtHR jurisprudence are examples of that influence. The coopera-
tion between the European Union countries in criminal matters based on
the principle of mutual trust faces the risk of being discontinued in case of
too big differences. National measures concerning forensic psychiatry can-
not be sufficient without taking into account the European standards.
• The third take-home message is the importance of the forensic psychiatrist
in the legal process of criminal law enforcement. Due to their position,
they can have a big influence on the outcome of the process, but more
important on the position of the vulnerable suspects. They have not only a
role to play during trial concerning procedural rights but also a role during
the execution of sanctions.
• The fourth take-home message derived from the CPT standards concerns
the safeguard that a decision to treat a person for a psychiatric disorder
without his/her free and informed consent should be separate from the
decision on involuntary placement in a psychiatric institution. These are
two distinct issues, and patients should be requested to express their posi-
tion on both issues separately. A placement order should never be con-
structed as authorising involuntary medical treatment.
• The last message relates to the use of disciplinary measures vis-à-vis psy-
chiatric patients. Such measures aim at sanctioning patients’ behaviour,
which is often likely to be related to a psychiatric disorder and should be
approached from a therapeutic rather than a punitive standpoint.

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1. Burton M, Evans R, Sanders A. Are special measures for vulnerable and intimidated witnesses
working? Evidence from the Criminal Justice Agencies. Online Report 01/06, London: Home
Office; 2006.
2. Porter S, Juodis M, Leanne M, Klein R, Wilson K. Evaluation of the effectiveness of a brief
deception training program. J Forensic Psychiatry Psychol. 2010;21:66–76.
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3. Meynen G. Legal insanity: explorations in psychiatry, law, and ethics, international library of
ethics, law and new medicine, vol. 71. Cham, Switzerland: Springer; 2016.
4. van Marle H, Mevis PAM, Roesch R, van der Wolf MJF. Understanding and evaluating con-
trasting unfitness to stand trial practices: a comparison between Canada and The Netherlands.
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5. Moncada Castillo MDC et al. Psychisch gestoorde verdachten. Artikel 6 EVRM vraagt om
herijking van de Nederlandse antwoorden op procesonbekwaamheid (Mentally disturbed sus-
pects. Article 6 requires reassessment of the Dutch responses to the disability to stand trial)
Strafblad. 2010. p. 320–37.
6. Verbeke P, Vermeulen G, Meysman M, Van der Beken T. Protecting the fair trial rights of men-
tally disordered defendants in criminal proceedings: exploring the need for further EU action.
Int J Law Psychiatry. 2015:67–75.
7. World Health Organization. Preventing suicide in jails and prisons. Geneva: WHO; 2007.
8. Morgan R.  The European Committee for the prevention of torture and inhuman or degrad-
ing punishment or treatment. In: Van Zyl Smit D, Dünkel F, editors. Imprisonment today and
tomorrow. International perspectives on prisoners’ rights and prison conditions. The Hague:
Kluwer Law International; 2001. p. 717–40.
9. Murdoch J. The treatment of prisoners. European Standards, Strasbourg: Council of Europe
Publishing; 2006.
10. de Lange J. Detentie genormeerd. Een onderzoek naar de betekenis van het CPT voor de inrich-
ting van vrijheidsbeneming in Nederland (Detention regulated. A research on the influence of
the CPT on the deprivation of liberty in Dutch prisons). Nijmegen: Wolf Legal Publishers;
2008.
11. van Kalmthout AM, Leidekker M. Het Anti-Folter Comité en zijn betekenis voor de gedeti-
neerden in psychiatrische inrichtingen (The CPT and its meaning for detainees in psychiatric
institutions). In: Oei TI, Groenhuijsen MS, editors. Forensische psychiatrie en haar grensge-
bieden, actualiteit, geschiedenis en toekomst. Alphen aan den Rijn: Kluwer; 2009. p. 755–68.
12. Hagens H. Toezicht op menswaardige behandeling van gedetineerden in Europa. Een onder-
zoek naar de verhouding tussen het EHRM en het CPT bij de effectuering van het folterverbod
(Monitoring humane treatment of detainees in Europe. A study on the interaction between the
ECtHR and the CPT with respect tot the effectuation of the prohibition of torture). Nijmegen:
Wolf Legal Publishers; 2011.

Legal Cases

ECrtHR 24 October 1979, no. 6301/73 (Winterwerp v. Netherlands).

ECrtHR 24 September 1992, no. 10533/83 (Herczegfalvy v. Austria).
ECrtHR 30 July 1998, no. 25357/94 (Aerts v. Belgium).
ECrtHR 5 October 2000, no. 31365/96 (Varbanov v. Bulgaria).
ECrtHR 26 October 2000, no. 30210/96 (Kudla v. Poland).
ECrtHR 15 June 2004, no. 60958/00, (S.C. v. the United Kingdom).
ECrtHR 18 December 2007, no. 41153/06 (Dybeku v. Albania).
ECrtHR 20 January 2009, no. 28300/06 (Slawomir Musial v. Poland).
ECrtHR 24 September 2009, no. 7025/04 (Pischchalnikov v. Russia).
ECrtHR 17 December 2009, no. 19359/04 (M. v. Germany).
ECrtHR 13 January 2011, no. 6587/04 (Haidn v. Germany).
ECrtHR 2 October 2012, no. 41242/08 (Plesó v. Hungaria).
ECrtHR 9 July 2013, nos. 66069/09, 130/10 and 3896/10 (Vinter v. the United Kingdom).
ECrtHR 31 October 2013, 17416/03 (Tarasov v. Ukraine).
ECrtHR 3 March 2015, no. 73560/12 (Constantia v. The Netherlands).
ECJ 5 April 2016, C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198.
ECrtHR 26 April 2016, no. 10511/10 (Murray v. the Netherlands).
ECrtHR 1 September 2016, no. 62303/13 (Wenner v. Germany).
ECrtHR 17 January 2017, no. 57592/08 (Hutchinson v. the United Kingdom).
 Part II
Service Provision and Frameworks
Mapping Offender-Patient Pathways
6
Bradley Hillier, Christopher Lambourne,
and Pamela Taylor

6.1 Offender Pathways: Beyond Fixed Placements

The movement of offenders with mental disorder between the criminal justice and
healthcare systems is a complex and, at times, idiosyncratic process. It varies between
countries in thresholds, legal mechanisms and processes, powers of psychiatrists and
courts and also settings available at different stages of the criminal process. A key
part of the work of forensic psychiatrists is provision of expert advice for the courts
and others throughout services and pathways, but, in Europe, it is always also about
delivering appropriate mental health services by some mechanism at almost any
stage of the criminal justice system, although details vary [1]. The first opportunity
usually occurs on arrest, when the police may ask for medical advice. It may even be
at this point that, if the alleged offence is not very serious, but the suspect appears
very disturbed, she/he may be diverted from the criminal justice system into the
healthcare system and any criminal procedures discontinued. In all European coun-
tries, some expert input to the criminal court will be expected if mental disorder is
suspected in the accused, although not all countries require psychiatric evidence at
pre-trial or trial phases of the hearing; in Sweden, for example, the courts proceed
straight to a trial of the facts, and all psychiatric evidence is taken in respect of

B. Hillier, BMBCh, MA(Oxon), MRCPsych, MFFLM

South West London Forensic Service, London, UK
Heathrow Immigration and Removal Centres, Central and North West London NHS
Foundation Trust, London, UK
C. Lambourne, LLB (Hons), DFP Juridique B2, MBA
Central London Community Healthcare NHS Trust, London, UK
P. Taylor, CBE, FRCPsych, FMedSci (*)
Division of Psychological Medicine and Clinical Neurosciences,
Cardiff University School of Medicine, Cardiff, UK
e-mail: TaylorPJ2@cardiff.ac.uk

© Springer International Publishing AG, part of Springer Nature 2018 91

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_6
92 B. Hillier et al.

disposal after conviction. In most countries, most psychiatric input is, in fact, likely
to be at the sentencing phase of the court hearing, in particular on whether a medical
disposal would be optimal. While many countries have ­specialised health services,
some, such as Spain, provide specialist secure clinical services only within prisons.
Where there are health service options, then transfer between penal and hospital set-
tings may also occur, as necessary, after a custodial sentence has been imposed. In all
countries, however, the medical role in placement decisions is advisory. Decisions
are always taken by the courts or other official bodies.
Within the European Union, each legal system has evolved within the historical
context of that country’s culture and governmental and political system, as has the
provision of health services. In some countries, and certainly in the UK, individ-
ual cases have had significant impact both on legal developments and on health-
care provision. In the UK, as a common law country, such cases may not only
predispose to a change in statute but also create a precedent in individual cases
and, thus, case law. A detailed discussion of legal systems and their provisions for
offenders with mental disorder is given elsewhere in this book [2].
The EU provides for the free movement of citizens between its member coun-
tries. Whether it be patients or recognised specialists moving between EU countries,
it is important for forensic mental health practitioners to have some general under-
standing of the likely pathways through the criminal justice and healthcare systems
in each other’s countries. There are opportunities for mutual training of people rec-
ognised as, or becoming, experts in their own countries (see [3, 4]).
In this chapter, as offenders with mental disorder are rarely, if at all, simply
“placed”, but rather moved between systems and up and down security and treat-
ment levels according to need, our aim is to introduce the reader to the concept of
“mapping offender pathways”. These provide a visually helpful way to understand
the movement, sometimes diversion, of offenders at different legal stages of a crimi-
nal process between physical settings and, in most cases, back to the community, as
applied in different countries. The examples of offender pathways given in this
chapter arise from a series of semi-structured interviews (see Appendix 1) with
senior (medical) forensic psychiatric trainees and recognised specialist practitioners
in the country mapped who have also attended the Ghent Group annual seminars
(see [3]). In order to minimise the complexity of the mapping tasks and compari-
sons, we have focussed on pathways in respect of one key event for an individual
and with reference to forensic psychiatrists specifically—a homicide offence.
Potential pathways available to the legal process when mental disorder is present
were identified and mapped using recognised mapping techniques, further described
below. We sent the resultant maps to the participating specialists for checking and
further comment. This builds on previously published preliminary work [5]. It is
important to note that, given significant variability between different systems and
the range of offences triggering assessments in everyday practice, these maps can
only be indicative of common and likely outcomes. It is also the case that few sys-
tems are static, so it is likely that new developments will change the picture from
time to time; however we hope that this way of thinking about service organisation
and service user progress will open more dialogue between experts from across the
EU so that we can learn ever more from each other.
6  Mapping Offender-Patient Pathways 93

6.2 What Is “Mapping”?

Mapping or, more accurately, “process mapping” [6] is an evidence-based manage-

ment tool that may be used in a variety of commercial and public sector settings,
including health service development. Within the UK it is a recognised and estab-
lished quality improvement tool employed to support insights into demand for ser-
vices and their costs and quality. It can also be used to frame education in best
practice by embedding clinical standards, identifying clinical service redesign pri-
orities and proactively managing clinical risk in developmental models. It is for
these reasons that the NHS Institute for Innovation and Improvement [6] recom-
mends process mapping as the corner stone of quality improvement. Further, map-
ping can be used in the process of organisational change, to facilitate transition from
a current situation, or “as is” map to the desired or improved system—the “to be”
map, showing where key developmental steps can be taken with minimal disruption
to still needed elements of service.
There are standard ways recommended for obtaining information for creating
relevant maps. This usually involves the organisation of a workshop with members
of different disciplines who are able to provide insights from a variety of view-
points. The layout of these maps is consistent and simple. Horizontal rows have
been used to represent visually an organisation’s role in each step of the pathway.
This technique, often referred to as providing “swim lanes”, can be used in many
ways to represent people, roles, care settings or chronology. Points of crossing the
swim lanes help to highlight the number of interagency handovers that should or do
occur. Events along the process are presented within standardised shapes to indicate
when an event is simply one step in the pathway (rectangles), a decision point (dia-
monds) or an end in itself (oval), including the ultimate destination.

6.3 Mapping Specific Pathways

Attendees at the 2014 Ghent Group residential seminar were provided in advance
with a scripted case, drawn from a real homicide case but with any identifying
details removed. Some questions were then posed about the various stages of the
legal process. The following day each participant was interviewed separately about
responses to such an offender in his or her country. The broad areas covered were
the legal process, when and how mental health clinicians (in particular psychia-
trists) become involved in that and the availability of opportunities for movement
between the criminal justice and mental health systems for the (alleged) offender.
Countries studied by this method were Austria, England and Wales (E&W), Finland
and the Netherlands.

6.3.1 Austria

Austrian mental health and criminal justice legislation was last reformed in 1973. It
places mentally disordered offenders fully under the jurisdiction of the criminal
94 B. Hillier et al.

courts and code and provides for a criminal justice-led forensic psychiatric system
[7]. When an alleged homicide offender is suspected of having a mental disorder,
the legal process is designed to identify and manage any mental health problems at
an early stage in the legal process. Such an individual would usually be remanded
to a specialist “hospital prison” (a specific stand-alone setting which is an equiva-
lent to a hospital but in fact part of the prison service from an administrative and
financial perspective) where assessment and treatment can occur in conjunction
with the court process (see Fig. 6.1). Expert evidence is given at trial by a psychia-
trist who is explicitly independent of any care and treatment ever offered to the
alleged offender. The expert generally, but not always, has completed a recognised
course on assessing offenders with mental disorder and giving evidence in court.
The system is inquisitorial, and, generally, only one expert is called. The expert is
expected to provide evidence on the state of mind of the individual at the time of the
alleged offence, and the court must determine whether there is enough evidence for
a verdict of not guilty by reason of insanity, or partial criminal culpability. Austria
makes a distinction at the point of sentencing as to the form of penal institution most
appropriate for an individual, as determined by the decision on culpability/respon-
sibility and illness-related “dangerousness”. If an individual is found to have com-
mitted the homicide but not be responsible on grounds of mental disorder and
continue to present with illness-related dangerousness, he or she would generally be
sent to a specialist psychiatric “hospital prison” (Justizanstalt Göllersdorf,
“Göllersdorf prison”).
If the individual is found guilty and responsible for the homicide, but to have
“mental abnormality of higher degree” present at the time of the offence, then he or
she may be sent indefinitely to an ordinary prison for the sentence but must have
psychiatric treatment in either a specialised prison (Justizanstalt Wien-Mittersteig)
specifically for these cases or in places in specialist wings of the three largest pris-
ons, depending on availability of places. In either case, the criminal justice system
will determine release, albeit with advice from clinical experts. Special healthcare
disposals within prison are only considered when the prison sentence would be
greater than 1 year under normal circumstances.
In the event of a successful not guilty by reason of insanity defence, if the offend-
ing individual is deemed to pose no continuing risk to others, then she/he may be
released unconditionally.

6.3.2 Finland

The assessment and treatment of offenders with mental illness in Finland is mainly
regulated by two laws: the Finnish Mental Health Act 1990/1116 and the Criminal
Law 1889 [8]. The Finnish criminal law recognises three categories of criminal
responsibility: “full responsibility”, “diminished responsibility” and “no criminal
responsibility” [9] (Fig. 6.2).
Within the Finnish legal system, mentally disordered (alleged) offenders may be
detained in a hospital from the point of arrest when there are clinical or
 Arrest for Suspect
Mental
Homicide

Police
Illness?

YES

Taken under
Criminal Law to to
Prison Psychiatric NO
Assessment Unit Sentence
Served

Assessment

Ministry OJ
Mental Health Prison with Indefinite
NO

Prison Psychiatric Unit

Needs? parallel detention at
indefinite Specialist
YES Forensic Psychiatric
6  Mapping Offender-Patient Pathways

Prison Treatment Prison

Needs Inquisitorial Trial &
accommodated in mental health
trial process evidence heard NO

High
Degree
Guilty? NO of Mental YES
YES Irresponsible? Abnormality?
Ongoing
presence of Annual
YES

YES illness Review

related
Illness risk?
Custodial related
NO Tarrif YES Dangerous Yes

Criminal Justice System

> 1 year? Prognosis?

NO
NO
Acquittal Released NO

Community
95

Fig. 6.1  Austrian forensic care pathways

 96

Arrest

Police
Suspect Taken to
Mental YES
psychiatric
Illness? hospital

NO Detained under
Detain? YES Mental
Health Law

Hospital
Psychiatric
NO
Assessment Treatment with 6
Report on
Conducted monthly review by
responsibility
(2-4 Months) Admin Court

Services
Forensic
YES

Forensic Statement on
Assessment responsibility Treatment NO Released
Requested and treatibility Required

THL / NAMA
YES Court NO Diminished? NO
Pre-Trial Decides Fully Irresponsible
Court Hearing
Detention Responsible?

YES YES
Forensic
Psychiatric
Assessment Criminal Justice Shorter Criminal

Criminal
Ordered? NO
Sentence Justice Sentence

Justice System
YES

GUILTY? NO Acquittal
B. Hillier et al.

Fig. 6.2  The Finnish forensic care pathways (December 2015)

6  Mapping Offender-Patient Pathways 97

security-­related reasons for doing so. This may be a general psychiatric hospital if
safe, or a specialist, secure forensic psychiatric hospital. The legal system is inquisi-
torial, so issues relating to the ability of the alleged offender to submit a plea and/or
conduct a defence are not a primary issue, although the investigating judge and
prosecutor must take them into account in the criminal justice process.
The judge has the discretion to order a psychiatric assessment either during the
pre-trial investigation period, or after prosecution. If the offence is sufficiently seri-
ous, as in homicide, but defined as attracting a sentence of greater than 1 year, the
examination may be ordered against the examinee’s will. This is requested from the
Terveyden ja hyvinvoinnin laitos (THL—National Institute for Health and Welfare),
which is a governmental health organisation within which operates a forensic men-
tal health section. THL will arrange an admission to an appropriate psychiatric set-
ting, which in the case of homicide is likely to be one of the state psychiatric
hospitals, such as Niuvanniemi State Hospital. It could, however, include other uni-
versity forensic psychiatric clinics or hospitals or the prison psychiatric hospital
Vankimielisairaala. The assessment takes 2 months and includes extensive informa-
tion from various sources, such as standardised psychological tests, physical exami-
nations, laboratory tests, behavioural observation and repeated interviews by a
forensic psychiatrist and the multidisciplinary team. The final forensic psychiatric
report includes a psychiatric diagnosis according to both ICD-10 [10] and DSM-5
[11] ­criteria, an opinion on the level of criminal responsibility and an assessment as
to whether the offender fulfils criteria for involuntary psychiatric care. THL pre-
pares an independent statement for the court. In most cases recommendations are
found to be in agreement with the forensic psychiatric report [9].
In Finland, for a finding of diminished responsibility or lack of responsibility, it
is necessary that the actions which constituted the offence were due to “insanity,
deep mental retardation or a serious disorder of mental health or cognition, render-
ing the sufferer unable to understand the nature of the act or its illegality, or so that
their ability to control their actions was crucially limited”. Only in cases where
responsibility is considered to be completely lacking may the individual be sent to
a specialist forensic hospital setting for treatment if this is regarded as necessary. If
it is agreed that these criteria are met, treatment may be ordered by THL against the
individual’s will if she/he is mentally ill, his/her mental illness is at risk of worsen-
ing or she/he may endanger the health or safety of him/herself or others and no other
psychiatric services would suffice; these are, in fact, exactly the same criteria as for
all involuntary psychiatric treatment [8]. If THL does order treatment, this must be,
according the Mental Health Act, delivered in a unit that “has the facilities and spe-
cial expertise required for the treatment of the patient”, and there is no further role
for the sentencing court. The determination of need for treatment in these circum-
stances being by the health service body rather than the criminal court is unusual in
European countries [12].
There are two state hospitals in Finland dedicated primarily to the care of offend-
ers with mental illness (although they also admit other patients who cannot be treated
anywhere else): Vanha Vaasa Hospital, Vaasa, and Niuvanniemi Hospital, Kuopio.
The former has around 150 beds, the latter around 300; there is also a third 116-bedded
98 B. Hillier et al.

unit at Kellokoski hospital, which operates within the Helsinki University Hospital
[9]. The length of stay for patients within these services is, on average, 4–9 years.
The detention is reviewed by the administrative courts on a 6-monthly basis [13].
After discharge, patients are required to be in supervision for 6 months, during which
they are regularly seen by a psychiatrist; this period may be extended, as deemed
necessary. Concerns about treatment compliance or rising risk may result in recall to
hospital. Absolute discharge is decided by THL. Once the “forensic status” of the
patient disappears, she/he is once again treated as everybody else in Finland and pos-
sibly liable to civil detention if becoming seriously mentally ill [13].

6.3.3 Netherlands

In the Netherlands, the role of forensic psychiatric services is defined within the
Criminal Code of the Netherlands [14]. The Netherlands Institute of Forensic
Psychiatry and Psychology (NIFP) plays a crucial advisory role throughout the
medico-legal interaction over alleged offenders with mental disorder (Fig. 6.3).
In our homicide case, courts in the Netherlands may raise the issue of mental
disorder before trial, requesting a specialist forensic psychiatric assessment, or Pro
Justitia observation. This may occur in a variety of settings; with a serious alleged
offence, it is likely to be in the high-security Pieter Baan Centre in Utrecht. This
national centre, run jointly by the NIFP and Ministry of Security and Justice, is only
for pre-trial assessments of up to 7 weeks, advising the judiciary on any need for
examination of the suspect in relation to legal accountability, the chance of reoff-
ending and optimal treatment and security. In the event of a finding of guilt, an
expert witness from the Pieter Baan Centre may be called to attend court and give
evidence. The Netherlands’ courts operate a “sliding scale” model to judge criminal
responsibility: total absence of responsibility, severely diminished responsibility,
diminished responsibility, slightly diminished responsibility and complete responsi-
bility. A special provision which the court may consider is Terbeschikkingstelling
(TBS; “Treatment on behalf of the State”); degree of responsibility accepted informs
availability of a TBS disposal.
The goals of TBS are explicitly to protect society, to treat the offender where she/
he cannot pose a danger to the public while in treatment and to facilitate reintegra-
tion within society. The latter is achieved, as in most countries, through a “testing
out” process of increasing levels of liberties and leaves [15]. Imposition of a TBS
order requires that the following criteria are met: the offender was suffering from a
mental disorder at the time of the offence; this mental disorder significantly or
wholly diminished responsibility for the actions; the offence would otherwise have
resulted in a prison sentence of at least 4 years; and the individual must pose a con-
tinuing risk to society. In practice, it is also the case that it is considered that non-­
TBS Penitentiary Psychiatric Centres (PPCs), provided within prisons for those
servicing custodial sentences, are not considered appropriate. Only the lack of defi-
nition of “mental disorder” for these purposes leaves imposition of the order open
to interpretation. An alternative may be for the court to impose a combined sentence
 Arrest for
Homicide

Suspect Psychiatric
Taken to police
Mental Illness? YES Ax in
station
Station

TBS Setting
Report on Report with
responsibility recommendations

Criminal
NO conducted compiled
6  Mapping Offender-Patient Pathways

Justice System
YES

Full
Court Hearing YES Psychiatric Ax NO Trial
Ordered?

Guilty? Criminal Justice

YES Responisible? YES
Sentence

NIFP / Peter
Baan Centre
NO
NO
Severely
Acquittal Diminished /
Irresponsible
Bi-Annual
Review

Placement at
Disposal of
Government

Police
(TBS)
99

Fig. 6.3  The Netherlands forensic care pathways

100 B. Hillier et al.

for those who are not judged to be completely lacking responsibility, consisting of
a prison sentence followed by a TBS measure. The prison sentence is served first to
reflect the need to be held accountable for the crime. In practice this is usually a
minimum term of 2 years, and then transfer to the TBS setting occurs. In all cases,
whether arising directly after the court hearing or following the imprisonment com-
ponent, the TBS measure is imposed for 2 years initially and must then be reviewed
every 2  years by the court. A TBS measure may be extended by the court every
2 years, after considering advice from the clinical team, if it is deemed necessary in
order to protect society and proportional, given the nature of the index offence(s).
When repeatedly renewed, an independent expert opinion is required every 6 years
to give an assessment of the TBS patient’s progress and prognosis [14]. It is note-
worthy that any concept of “treatability” is not of relevance to the court, but simply
the combination of dangerousness and psychiatric or psychological disorder [16].
The “mandatory treatment” component of the TBS is delivered across several
Ministry of Security and Justice settings, some of which have a pathway of graded
security levels within them and not. They include Forensic Psychiatric Centres
(FPCs) at the more secure end of the spectrum, through Forensic Psychiatric Clinics
(FPKs) and General Psychiatric settings with a Forensic Department (FPA) at the
physically lowest security end. Within the TBS system, there are some particular
principles which guide the therapeutic approach. “Tolerated procedures” for main-
taining security are clearly defined, such as searches by staff and restraint as propor-
tionate to the risks posed by individuals within the setting [17]. “Meaningful
activities” and work are provided, although it is not mandatory for detainees to
participate in these. With respect to enforced medication, the guiding principle is
against it for people with mental illness who have the capacity to give consent. For
very severely disturbed patients without capacity to give consent and for whom the
psychiatrist in charge considers there is no other treatment, the treating psychiatrist
may apply to a multidisciplinary panel within the organisation to consider enforcing
medication in specified dosage; if permission is granted, this is reviewed by the
same panel every 2  weeks. A 2011 visit by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
found that approximately 10% of TBS patients had been subject to enforced medi-
cation in this way, usually with depot antipsychotic medication [18].
In 1999 the TBS system began to develop the concept of “long-stay” wards for
detainees who were not progressing to discharge (see Chap. 10, [19]). Discharge,
unless mandated instead of order renewal in court, occurs under the review of the
criminal justice system. Risk reduction and rehabilitation must be demonstrated,
generally through evidence of engagement with therapy (including compliance with
medication, psychological and occupation therapies) and progress through security
levels. The Ministry of Justice appoints two independent experts (a psychiatrist and
a psychologist) to give evidence, but the final decision is with the court [14]. An
option of placement in “approved premises” is available, providing it can be dem-
onstrated that the individual is showing reasonable recovery from his or her mental
disorder and is complying with his or her treatment programme [16]. This is particu-
larly useful as the individual at this stage of progress may live and/or work partly in
6  Mapping Offender-Patient Pathways 101

the unit and partly in the approved community premises. A specialist community
mental health team will then make frequent assessment and support visits to the
detainee when in the extra-mural setting, with the option of returning the individual
fully to the secure TBS unit if there are signs of recurring symptoms of mental dis-
order and/or increasing risk to society.
The Dutch TBS system is currently undergoing reform in terms of policy direc-
tion, in part to reduce the number of beds. Although it is unclear how this will be
achieved, the Custodial Institutions Agency has been charged with closing three
FPCs, thereby reducing capacity for TBS patients from 1, 867 in 2013 to 1339 in
2018 ([20]; see also [14]).

6.3.4 England and Wales

The legal system of England and Wales (as well as Northern Ireland and Scotland
which have related but distinct laws) arises from a common law tradition, relying
both on statute and case precedent. It allows for a good deal of flexibility in manag-
ing alleged offenders with suspected mental disorder. At every stage of the process,
questions are asked about relevant aspects of mental state, so, for example, there is
as much concern about whether a person is fit to be interviewed by the police and
under what circumstances as about the safety of the individual in custody. The legal
framework allows for transfer into the healthcare system at any stage of the process;
after a criminal justice disposal, the individual may be transferred into the health
service if she/he needs assessment or treatment for a mental disorder and, if appro-
priate, transferred back into the criminal justice on substantial improvement or
recovery. Compulsory treatment is not possible in prisons except in a bona fide
emergency (Figs. 6.4 and 6.5).
In court, an expert psychiatric input may be called at any stage of the hear-
ing—pre-trial on fitness to plead, during the trial with evidence pertinent to deci-
sions on level of responsibility for the offence, if any, and afterwards, on
sentencing or other disposal. Expertise in these circumstances is defined by
knowledge or experience, according to case law; the expert must be ready to set
out his or her qualifications and experience; and statutory law defines the number
of experts from whom and how the court must hear evidence within the Mental
Health Act [21]. These are in the s37 and s37/41 original legislation in the MHA
(for more information, see http://www.legislation.gov.uk/ukpga/1983/20/section/37
and http://www.legislation.gov.uk/ukpga/1983/20/section/41).
As a serious charge, murder or manslaughter will always be referred to a higher
or Crown Court; if unfitness is found by the presiding judge, then a jury be empan-
elled to hear the trial, which will be of the facts alone. Such cases are rare. It is also
rare for mens rea to be tested in court, but homicide is the exception, because in the
UK there is a mandatory consequence of life imprisonment if found guilty of mur-
der. This is the only offence for which a defence of diminished responsibility may
be advanced, an insanity defence, which may be applied to any crime except those
of strict liability, such as motoring offences. If successful, the insanity defence
 Issue of Fitness to
102

Plead raised by
Prosecution /
Defence
Fitness
Assessment/ concerns Legal process
YES
Reports by reported? halted pending
(Forensic) recovery
Psychiatric Expert
NO

Post Trial
Fitness
Plea entry YES NO
regained?

Guilty Plea?

“Trial of the
NO Facts”

YES

Not Guilty
Jury Trial Guilty? NO “Guilty of the

Trial Phase
by Reason of
Insanity? Act”?

NO NO YES

Acquittal
YES YES

See “Sentencing”
Guilty Verdict
Flowchart

Pre-Trial Plea Phase

B. Hillier et al.

Fig. 6.4  Mental health factors during legal proceedings in England and Wales—pre-sentence
6  Mapping Offender-Patient Pathways 103

Guilty Not Guilty

NO NO Acquittal
Verdict of by Reason of
Homicide? Insanity?
NO
YES Psychiatric Reports
“Special
Obtained to inform
Verdict”
sentencing
Conditions
Diminished for
making
responsibility hospital
“Manslaughter”
YES
mental order
health defence Conviction satisfied?
accepted
in trial?

NO Psychiatric
Criminal Justice

Mental YES Reports

Health issues Obtained
raised by any
Murder party as
conviction appropriate in
sentencing? Conditions Judicial Discretion Judicial Discretion
for making regarding risk and regarding Risk
hospital YES culpability Assessment
order
satisfied?
Any one of:
NO
NO

S45A “Hybrid”
Mandatory “Life” Custodial Hospital Direction and
Prison Sentence Sentence
Ministry of

Limitation Order
Justice

S37 Hospital Order

with Restrictions under
Section 41 Mental
Health Act
Mental Health Services

S37 Hospital
Order
without restrictions

Fig. 6.5  Forensic mental health sentencing disposals within England and Wales

allows a verdict of not guilty by reason of insanity, but both statute and case law
have led to a pragmatic approach such that if the individual is regarded as a risk to
others or, indeed, to self as a result of the mental disorder, then he or she may be
ordered to a hospital within the health service system, privately or publicly provided
but always funded by the National Health Service (NHS). A successful defence of
diminished responsibility leaves the accused with a conviction, but the lesser con-
viction of manslaughter rather than murder. This allows the judge complete discre-
tion in sentencing. If the mental disorder is still prominent and still contributes to
risk, then sentence may be set aside in favour of a hospital disposal, usually with
restrictions on discharge so that the clinicians may not discharge the patient without
the approval of the Ministry of Justice or a specially convened First-tier Tribunal
(FTT) specialising in mental health (chaired by a judge). Otherwise the judgement
104 B. Hillier et al.

of diminished responsibility may be taken as mitigation and a less severe sentence

imposed. The judge may still give a life sentence but, for example, impose a short
tariff (the period of time which the offender must stay in prison), but may give a
fixed term or even a community penalty.
Once sentence has been passed or a hospital order made, the law requires ­periodic
review for all except the shortest sentences. In the prison system, the independent
parole board is responsible for holding hearings. The first would be held just before
the tariff is reached. If release is not ordered, then further hearings will occur at
intervals until this happens. There is a requirement for the parole board to consider
annually the need for a hearing. In practice the actual hearings tend to occur every
1–2 years. Where mental disorder had been recognised in the original court hear-
ing—or subsequently—an expert psychiatric report would be expected. In hospital,
the case for continued detention or not is heard by the First-tier Tribunal. If not
released, patients may apply annually and must have a hearing at least once every
3 years whether they request it or not [21]. The powers of both the parole board and
the tribunal are restricted to release/not release, but each may make recommenda-
tions for other changes, such as testing out in lower security conditions. People
under life sentence remain liable to recall to prison for the rest of their lives in the
event of breech of parole conditions or reoffending; people under restricted hospital
orders, but not unrestricted hospital orders, remain liable to recall to hospital on the
same sort of grounds, unless at some point they are granted an absolute discharge
from the order by the tribunal. In prison or the hospital, it would be expected/advised
that the detainee would engage a lawyer to support them through these processes,
generally at public expense.
In the case of a serious offence like a homicide, processes of another kind will
also follow when patients start to leave from the hospital and after discharge. They
are likely to be subject to Multi-Agency Public Protection Arrangements (MAPPA;
[22]). For most, this simply means referral to the local inter-agency MAPP Panel,
but where cases give rise to particular concerns, the panel may convene meetings
and/or require special community arrangements. MAPP Panels are almost exclu-
sively police-led, which concerns clinicians, but once a case is designated as a
MAPPA case, then proportionate information sharing occurs between relevant men-
tal health providers, and the local MAPP Panel is a requirement.
Provision of specialised Community Forensic Teams (CFT) or Forensic Outreach
Services (FOS) has developed as the philosophies of general adult and forensic
psychiatric services have diverged. The former now tend to work towards episodes
of care and crisis intervention, whereas for offender patients, maintenance of health
is vital. Against hope, therefore, forensic and general adult psychiatric services tend
to work in parallel to each other, although there is no model which absolutely pre-
vails in England and Wales, and wide regional variability. Funding sources and
duration remain unclear, in part as a result of various reorganisations of funding
streams for healthcare (at least in England). The most recent development in
England, the Mental Health Five Year Forward View [23], indicates an appetite for
further development of community mental health services for mentally disordered
offenders, taking account of local needs.
6  Mapping Offender-Patient Pathways 105

6.4  ommon Themes and Differences Identified

C
from Mapping Offender-Patient Pathways

6.4.1 T
 iming of Allowance for Mental Health Issues During
the Criminal Justice Process

It may seem like an obvious statement but, first, it is worth noting that for the four
countries considered, the maps confirm that it is possible for the courts to take men-
tal health into account, if not at all stages of the criminal justice process, then at least
during sentencing and following imprisonment. As homicide is a serious offence, no
country allows for complete diversion out of the criminal justice system before
charges are brought, and any transfer to healthcare within this period would be to
in-patient care under specific legal provisions pending charges because the indi-
vidual requires urgent treatment.
The first real medico-legal question which could arise is that of fitness to plead
and/or stand trial, and here the mapping shows differences between countries.
Crucially, England and Wales requires a plea to be entered to proceed owing to
the adversarial nature of the legal process. If there are concerns that the defen-
dant’s mental state at the time of court hearings is impaired and it is raised by any
party, psychiatrists are called upon to provide evidence to the court regarding this.
Austria does not regard this as critical in the same way reflecting differences
within the inquisitorial/civil law tradition and the role of the defendant. There are
intermediate positions in Finland and the Netherlands whereby there is legal dis-
cretion in the Netherlands to take the ability to stand trial into account, as well as
in Finland where the investigating judge or prosecutor must take this into account.
Psychiatric evidence is not necessarily required but can be taken into account to
guide the investigation. The principles that guide this are enshrined within the
“right to a fair trial” under Article 6 of the European Convention on Human Rights
(ECHR) [24].
Notwithstanding these differences, common ground is that in all countries, most
of the psychiatric effort goes into evidence to support decisions on sentencing/
placement from court.

6.4.2 Availability of Specialist Secure Hospitals

Some differences arise as to the nature of the services available. The Netherlands
has hybrid health and justice services, some services being provided in the TBS
system in stand-alone units funded and managed by the Health and Justice
Departments of government, and some within prison psychiatric centres. Similarly,
there are no secure forensic hospital units provided by the health service alone in
Austria. Here, however, all specialist healthcare provision for offender patients is in
the prison system. In both the Netherlands and Austria, clinicians are employed by
the agency running the unit. In Finland and England and Wales, clinicians may pro-
vide clinical services in prisons but are always employees of the health service.
106 B. Hillier et al.

Where hospital treatment is required, this takes place in hospitals which are run by
the healthcare system and subject to healthcare system audits.
The broader picture across the EU of provision of forensic services is similarly
variable in provision and standards, although we do not have the scope to detail this
further here. Forensic mental healthcare is regarded as a low-volume high-cost sub-
specialty that may not be prioritised in countries with lower resources for healthcare
or imprisonment.

6.4.3 Enforced Treatment?

As Austria’s forensic mental healthcare is entirely within criminal justice-run

institutions, enforced treatment may be given in a prison setting, albeit an adapted
or specialist prison units. In the other countries reviewed here, treatment cannot
be enforced in a custodial setting, although in the Netherlands’ TBS units, this can
be varied under the very specific circumstances described above. Indeed, in
England and Wales and in Finland, need for treatment is the catalyst for switching
from a criminal justice to a healthcare pathway. Nevertheless, it can be seen from
the maps that several jurisdictions now provide for combining treatment and pun-
ishment—with consecutive mental health and imprisonment aspects. Even the
UK has succumbed to this with the “hybrid order” available within mental health
legislation. To the best of our knowledge, no one has evidenced the nature and
quality of outcomes after a hybrid order. Our hypothesis is that they would
increase the likelihood of serious reoffending. Either the therapeutic attachments
of a satisfactorily treated individual are severed and she/he is allowed to drift and
probably deteriorate under punishment, confused about the meaning of any of it,
or a difficult-to-treat individual is summarily returned to prison in a further epi-
sode of rejection.
In many cases, the divisions between treatment and punishment are far less
delineated. Many people who have a mental disorder and have killed another per-
son, do not have a disorder of a nature or degree that would have resulted in a hos-
pital admission had they been in the community. While this does not mean that they
do not require treatment, many can be treated, effectively, as outpatients within a
prison; in England and Wales, they would be seen by health service personnel com-
ing into prisons. More serious mental disorder may, however, become apparent dur-
ing imprisonment, and the person may then need transfer to a hospital. The countries
we mapped differ in whether that is within the healthcare system, the prison system
or a hybrid system.

6.4.4 Nature of Aftercare and Other Community Provisions

Although our primary task was not to review care and treatment beyond the institu-
tion, the mapping discussion did identify some similarities and differences in after-
care and follow-up. Austria is only now in the process of developing community
6  Mapping Offender-Patient Pathways 107

forensic mental health services, which may be accessed from the prison in the form
of a “conditional release”, but that there is no mandatory requirement for the indi-
vidual to engage with these once their detention has come to an end. Transitionary
arrangements in the Netherlands, which may for a while hold the individual simul-
taneously in institutional and community services, are described above. The Finnish
system does have a comparable follow-up period, reviewed in 6-monthly blocks,
but which may extend indefinitely, although many/most individual would expect
eventually to be discharged by the THL and be regarded as “without any forensic
status”, and fully reintegrated into society. One of the more distinctive aspects of the
situation in England and Wales is the MAPPA model described above (see also
[25]). The principle of movement along a continuum from high dependency to
healthy independence, occasionally disrupted by relapse or other events but actively
facilitated by “paving the way” and “testing out”, is well accepted [26].

6.4.5 The Role of the Forensic Psychiatrist

The forensic psychiatrist’s various roles differ somewhat between EU countries. For
an offence as serious as homicide in its various forms, it would generally be the case
that the court would require someone in court who has whatever level of forensic
psychiatric training is typical for the country, although only in Finland is it required
that such psychiatrists are members of the specialist board. In some, but not all
countries, the main concern is to separate the expert and treating roles [27]. In most
countries—which operate an inquisitorial system of justice—the expert report is
invariably commissioned by the court, and so invariably available to the court. In the
UK, with its adversarial system, the court may indeed commission one or more
expert reports, but so also may the prosecution and the defence; the expert report for
the defence need not necessarily be produced in court providing the defence does
not rely on any information or opinion uniquely provided in it. We have already
noted some differences in stage of the criminal hearing at which expert evidence is
taken.
Forensic psychiatrists may then also have considerable roles in the pathways out
of services, in the legal process of release of constraints as well as in more conven-
tional rehabilitative processes. In all the countries reviewed, psychiatric evidence is
usually required to inform the decision-making process of whichever organisation
or justice framework is responsible for ordering release from detention, but a com-
mon theme that it is always the reviewing body taking the decision.

6.5 Conclusion and Future Directions

This chapter confirms that the pathways for offenders with mental disorder take
account of mental health needs and the relevance of mental disorder to fair process,
judgements, disposal and aftercare—in all the countries studied. There are, how-
ever, some quite substantial differences of detail. A great strength of the mapping
108 B. Hillier et al.

process we have described is that it has helped dialogue about our services’ mutual
understanding of how they work. Other countries too may now find they could be
useful to help inform patients, relatives and victims about what they may expect of
the months and years which follow first involvement with the criminal justice
system.

Take-Home Messages
• Process mapping provides a quick visual reference tool for understanding
offender-patient pathways through the legal and clinical systems.
• It may have applications for information leaflets for patients and their rela-
tives and for fellow professionals.
• In all jurisdictions, a person alleged to have committed a homicide who has
suspected mental disorder can expect that arrangements will be made to
meet mental health needs at any stage of the criminal justice pathway.
• In all jurisdictions, a person may expect that expert psychiatric reports will
affect how she/he is dealt with, whether convicted of that offence or, in
some countries, found not guilty by reason of insanity.
• The pathway mapping shows the extent to which we are similar or may
differ in where services are provided; research comparison of outcomes
given these inherent differences would be useful.

Acknowledgements  We would like to acknowledge the following clinicians for the original
interview data and for patient guidance in subsequent drafts: Dr. Alexander Dvorak, Consultant
Psychiatrist, Ministry Of Justice Justizanstalt Göllersdorf, Austria; Dr. Allan Seppanen, Consultant
Forensic Psychiatrist and Clinical Director, Helsinki University Hospital, Finland; and Dr. Ellen
van Lier and Dr. Hans Hulsbos, Consultant Forensic Psychiatrists, Penitentiary Institution Vught,
the Netherlands.

6.6  ppendix: Briefing Note: Preparatory Questions

A
for Care Pathway Interviews

6.6.1 Introduction

This briefing note will prepare you for the care pathway interviews we will be con-
ducting at the conference. We have listed key questions below which are broken
down into stages. This should support a detailed discussion during interview and
encourage some reflection in advance. Our intention is to clearly and visually
describe the care pathway for mentally disordered offenders in a range of countries.
This builds on work already completed for both Denmark and the UK (Danish
Pathway attached for reference). You will be involved in the review and approval of
the relevant pathway(s) once completed.
We would like to thank you for your time and contribution to this work.
6  Mapping Offender-Patient Pathways 109

6.6.2 The Case Study

We would like to use the following scenario to explore the questions below.
The police are called by a neighbour to a residential property where there has been
a serious disturbance. The police attend the scene and find a man who has stabbed
his wife multiple times. The wife is dead and the man is in a highly agitated state.

6.6.3 Care Pathway Interview Questions

6.6.3.1 Arrest
Stage Question Things to think about
Arrest What happens at the scene of Consider who is contacted at this point by who.
the crime if? Where the suspect is taken to (e.g. police station/
i. the police do not suspect hospital/other)
any mental health issues?
ii. the police do suspect
mental health issues?
Arrest What assessment will be Consider capacity, fitness to be interviewed, etc.
done by who at this stage?
Arrest Assuming there is a mental Where is the person held? Who is responsible for
health concern following him? What legal framework is detention under at
assessment, what would this time and who decides this? Is this the Court,
happen next? Police, Judge, Psychiatrist/Doctor, Minister?

6.6.3.2 First Court Hearing

Stage Question Things to think about
First court hearing At the first court appearance, Are there specialist mental health courts
which court in your legal available? Who would bring this action?
system would this be? i.e. police, state, private, other?
First court hearing Does the accused have to What are the available pleas?
make a plea at this stage?
First court hearing Would a psychiatrist be How are psychiatrists appointed? What
present? will they be asked to advise the court
on? What are the limits of their authority
at this stage?
First court hearing Who raises concerns on mental Is this a lawyer, judge, magistrate?
health in the court setting?
First court hearing Assuming it is deemed that Where is the person held? Who is
the person had an active responsible for him? What legal
psychotic illness, what would framework is detention under at this time
happen next? and who decides this? This may be
Court, Police, Judge, Psychiatrist/Doctor,
Minister, etc. What is needed to make
this order and who carries it out? Are
there logistical/practical considerations
here, e.g. bed availability?
110 B. Hillier et al.

6.7.3.1 Care/Detention Provided in Interim Period

Stage Question Things to think about
Care/detention What (mental) healthcare What level of psychiatric input is available
services are available to the during this period and in what setting? How
accused during detention? long might this period be? Is there any
interaction with the court in this period?

6.7.3.2 Trial
Stage Question Things to think about
Trial Are there circumstances What is the threshold for this? At what stage could this
where the defendant would occur and who would authorise this via which legal
not reach the trial stage? framework?
Trial What kind of trial would Who would represent the suspect, what type of court
take place in what type of would this take place in? What input would psychiatric
court? services have in this process? Are there special
psychiatric defences and are they absolute?
Trial Assuming there is no (Where is the person held? Who is responsible for
dispute on the facts, and the him? What legal framework is detention under at this
offence is psychotically time and who decides this? This may be Court, Police,
driven, what would happen Judge, Psychiatrist/Doctor, Minister, etc. What is
to the defendant? needed to make this order and who carries it out? Are
there logistical/practical considerations here, e.g. bed
availability, etc.? Does the judge have the ability to
override psychiatric opinion?

6.7.3.3 Post-trial Assessment

Stage Question Things to think about
Post-trial assessment What type(s) of Is this to inform sentencing or simply
assessment(s) would be done a legal requirement to assess
following conviction to periodically? Who will be the recipient
review the mental state of the of the assessments? Is the defendant
defendant? able to challenge these assessments?

6.7.3.4 Transfer or Discharge

Stage Question Things to think about
Transfer or discharge What are the circumstances Can they be discharged to the
in which the defendant can be community from hospital, or
transferred or discharged transferred to prison? Who would
from one setting to another make this decision? How often might
(e.g. prison to hospital)? this be reviewed? Can defendants be
transferred from prison into the
hospital/psychiatric system following
a mental health concern?
6  Mapping Offender-Patient Pathways 111

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Organization and Funding of Forensic
Psychiatric Facilities Across Europe 7
Ellen van Lier and Vicenç Tort-Herrando

7.1 Introduction

The scope of this chapter in not an in-deep revision regarding all forensic psychiat-
ric services provided by all the European countries. The information about the ser-
vice provision in several countries is scarce and not up-to-date. A further problem is
that the definition of what we mean by forensic services depends on national laws
and health systems. For example, sometimes prison psychiatry is included and other
times not. The main focus will be to broadly describe the main services provided
across European countries and to describe the funding of these services and the
consequences of different funding types. Finally we will also look into ethical issues
and professional views, in scope varying from psychiatric ethics to social ethics.

7.2  escription of the Forensic Health-Care Systems by

D
Public Health and by Justice

European countries use specialist forensic facilities, general mental health-care

services and the prison system to place and treat mentally ill or disordered persons
who have committed minor or serious offences. The degree of involvement of each
of these sectors and their individual patterns of usage differ widely throughout

E. van Lier
Faculty of Medicine and Health Sciences, Collaborative Antwerp Psychiatric Research
Institute (CAPRI), Antwerp University Hospital, University Forensic Centre (UFC)
and University of Antwerp, Edegem/Wilrijk, Belgium
e-mail: e.v.lier@dji.minjus.nl
V. Tort-Herrando (*)
Unitat Polivalent de Psiquiatria, CP Quatre Camins, Parc Sanitari Sant Joan de Déu,
Barcelona, Spain
e-mail: vtort@pssjd.org

© Springer International Publishing AG, part of Springer Nature 2018 113

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_7
114 E. van Lier and V. Tort-Herrando

Europe [1]. In addition, within each of these sectors, different states provide a
variety of service types which differ considerably with regard to organization as
well as to quantity or intensity of care [1].
The placement and treatment of mentally disordered offenders are a controver-
sial issue within the criminal justice systems of Western societies. The handling of
mentally ill offenders by a criminal justice system is an indicator of the ability of a
society to balance public safety interests with the achievements of modern psychia-
try and of its ability to incorporate basic human rights principles into penal and
mental health practice.
The organization and delivery of psychiatric forensic services are influenced by
a balance between the public safety and the individual rights and treatment needs.
Thus the provision of services is determined by national laws and health-care sys-
tems in the different European countries. This situation makes it difficult to give a
unique view of Europe’s forensic psychiatry service provision, although all the
European countries have a national legal framework to deal with mentally ill offend-
ers (pretrial or sentenced) including inmates that have become mentally ill in prison
settings.
Forensic psychiatry, at first glance, seems to differ from one country to another
due to different historical developments, different legal systems and different men-
tal health systems [2]. In spite of that, forensic psychiatry has several goals shared
across countries, principally:

• Assurance of treatment for severely mentally ill people who become

delinquent
• Giving evidence to courts in cases when the offender’s mental responsibility is in
question
• Working effectively at the interface of the law and psychiatry, and, in so doing,
working well with other clinical and nonclinical professionals in the field
• Preventing relapse of offenders with mental disorder

As a specialized sector of mental health care, forensic psychiatry has inevitably

been affected to some degree by the changes in this field over the last decades [3–5].
However, varying degrees of involvement in the reform process have resulted in the
emergence of varied models of forensic care across Europe. Some countries have
integrated their forensic services quite tightly into the general mental health-care
system, whereas other countries have developed separate arrangements for the care
of mentally ill offenders, which are set apart from general psychiatry.

7.2.1 F
 acilities and Services for Mentally Ill
or Disordered Offenders

Overviews or typologies of forensic psychiatric services must take account of dif-

ferences in legal concepts between states, as well as of the different stages in the
legal process through which a person passes, when suspected of, or found to have
7  Organization and Funding of Forensic Psychiatric Facilities Across Europe 115

committed, a crime whilst mentally disordered. All these factors determine the type
of detention ordered and the type of service concerned. The type of detention is
influenced principally by:

• The stage in the legal process (pre- or posttrial)

• The legal status of the person concerned—whether a suspect, defendant, con-
victed person, detained person or a patient
• The criminal responsibility of a mentally ill or disordered offender

7.2.2 Specialist Forensic Facilities

Specialist forensic facilities are the most common type of service in which crimi-
nally non-responsible mentally ill offenders are placed and treated. As an overall
category, this includes specialist forensic hospitals, specialist forensic wards in psy-
chiatric hospitals or even—as a rare option—specialist forensic departments or
wards within general hospitals. Although such placements are used most frequently
posttrial, they may also be used for mentally ill or disordered persons who have yet
to come to trial.
Some of the less populous countries (e.g. Luxembourg and Ireland) tend to have
one central forensic hospital that serves the whole country and which might be
supplemented by minor forensic care capacities in general psychiatric hospitals,
whereas more populous countries (e.g. Germany, England and Wales) have a diver-
sity of forensic provision [6].
Mentally ill offenders who have committed serious offences and who are being
held as criminally non-responsible constitute the core clientele of forensic facilities,
although there are some exceptions to this rule, most often for reasons of bed avail-
ability or security.
A substantial proportion of European countries (e.g. Finland, France, Ireland,
England and Wales, Sweden) admit aggressive, violent or “high-risk” non-­offending
mentally ill individuals to forensic facilities. This is done most often under civil
detention orders, but this is not necessarily so in all cases. Amongst these countries
Finland is not requiring an offending history as a major criterion for admission to
forensic care [6].

7.2.3 General Psychiatric Facilities

During the pretrial phase, it is common in many European countries for offenders
suspected of being mentally disordered to be admitted to general psychiatry hospi-
tals on a short-term basis (e.g. for assessment purposes). Posttrial, admissions to the
non-forensic wards of general psychiatric hospitals are rare in most states, espe-
cially as far as criminally non-responsible patients are concerned. Some countries
explicitly exclude these patients from posttrial placement in general mental health-­
care facilities with the most severe offences.
116 E. van Lier and V. Tort-Herrando

In countries that do not apply the concept of criminal responsibility, like England
and Wales, Ireland and Sweden, priority is given to the need for treatment as a
placement criterion [6, 7]. In these countries, security considerations or the avail-
ability of treatment places may influence a decision for placement in general
psychiatry.
Due to lack of data, it is difficult to draw any firm conclusions about the overall
quality of forensic care in general psychiatry wards. Posttrial placement of forensic
patients on general psychiatric wards might be evidence of positive features—the
existence of a wide range of psychiatric provision or of an integrated treatment
approach (where sufficient services are available, both in general mental health care
and in the forensic sector). But it could also mask a shortage of places in the special-
ized forensic care system and a shift of burden to general psychiatry, which may
often be poorly equipped to offer appropriate treatment or security.

7.2.4 Outpatient Forensic Care

Although outpatient care is an integral part of general mental health care nowadays,
specialist outpatient care for forensic psychiatric patients is underdeveloped.
Follow-up may be usual in many European countries or indeed mandatory in the
case of probation orders, conditional discharge or as a general aftercare measure,
but specialist services are usually lacking. Some countries as Austria, Belgium,
Germany and the Netherlands currently provide forensic outpatient services as a
specific posttrial measure. The Netherlands are the most well-provisioned state in
this regard, equipping each forensic hospital (TBS facility) with an outpatient unit
to provide forensic outpatient and aftercare, in addition to such highly specialized
services as forensic home treatment or forensic sheltered accommodation. But
transferring patients from inpatient care to outpatient care can prove difficult due to
judicial restrictions, public opinion and limited capacity. Also the transition of
patients from forensic care to general psychiatric care is very difficult sometimes. In
some countries (e.g. Italy and Spain) community psychiatric forensic services do
not exist. In those cases the forensic outpatient care can be provided, when crimi-
nally non-responsible mentally ill offenders are presenting no public threat, by
regular community mental health services.

7.2.5 F
 orensic Services for Offenders with 
Specific Mental Disorders

Where countries offer forensic services for offenders with specific mental disorders,
these services in most cases are related to substance abuse. Austria, Belgium,
Germany and the Netherlands currently offer such substance abuse services for
offenders. In Belgium problem behaviour clinics for sex offenders exist. Specific
diagnosis-related treatment programmes may also be available for forensic patients
in other member states but most often only as part of wider treatment programmes
7  Organization and Funding of Forensic Psychiatric Facilities Across Europe 117

in general psychiatric hospital services, forensic units or prison services

(e.g. Portugal, Greece or Spain). Treatment for sex offenders is also provided in
some European countries, but these usually are of limited capacity and usually part
of more general prison-based programmes Last but not least, there were some spe-
cific treatment programmes for patients with personality disorders like dangerous
and severe personality disorders (e.g. in England and Wales) [6]. These services
have shown no clear benefits (and very high cost), and they were closed down but
still have services for offenders with personality disorders.

7.2.6 Prison Services

Prison services are the most crucial sector and the most difficult to describe when
evaluating procedures for the placement of mentally ill offenders across Europe. All
countries that apply the concept of criminal responsibility in their jurisdiction place
mentally ill or disordered persons who are held fully responsible for their offences
in prison services or penitentiaries. However, that does not necessarily mean that
special prison wards or adequate psychiatric treatments for such people are indeed
available.
Prior to trial, prison services are considered acceptable and are used by most of
the countries for detaining offenders suspected of suffering from a mental illness or
disorder, e.g. for assessment purposes or during transitional periods until the final
placement is ordered. In Portugal, however, the court is never entitled to place in
prison a person who is suspected of being mentally ill; instead the individual is
placed in a specialist forensic facility, even if the mental state of the suspect has
been not assessed by an expert.
Posttrial placement of criminally non-responsible mentally ill offenders in a
prison is hardly a legal option across Europe. In several countries, however, limited
capacities in forensic facilities may determine the (temporary) placement in prison
of people fulfilling the legal criteria for specialist forensic treatment.
People who have committed serious crimes and who are suffering from psychi-
atric disorders not legally qualifying them for forensic care depending on the valid
legal system are usually given prison sentences. Most often excluded are the non-
psychotic mental illnesses, substance abuse disorders, personality disorders or the
sex offenders. Individuals suffering from these disorders impose a heavy burden on
prison systems. It is likely that there is a serious under-provision of psychiatric ser-
vices for such conditions in some European states.

7.2.7 Forensic Facilities in the Private Sector

Forensic facilities in the private sector are applied in varying degrees in some of the
European states. In the Netherlands, the majority of forensic institutions (five out of
seven TBS hospitals) are in private ownership. Forensic Psychiatric Centre Veldzicht
and Forensic Psychiatric Centre de Oostvaarderskliniek are the only ones run by the
118 E. van Lier and V. Tort-Herrando

Ministry of Justice. Historically, it was possible to be admitted in a psychiatric hos-

pital for treatment against a patients will from 1886 in the Netherlands. In 1928,
TBR was implemented which could be given for any committed offence, and the
first asylum was opened. Judges applied TBR regularly, and soon the asylum had
capacity problems, which led to the opening of more clinics and to the revision of
this law in 1933, 1951 and in 1988, when TBS was formed to insure better treatment
for patients, since many patients had a history of psychiatric treatments and treat-
ment options where very limited until that time. There has always been a relation
between general mental health facilities and forensic facilities, but during the course
of time, forensic psychiatry has more and more become a speciality of psychiatry.
Forensic psychiatric facilities are integrated in the pathway of psychiatric
treatments.
In Spain, out of the four national psychiatric penitentiary hospitals, those in
Catalonia and Basque country are run by private psychiatric providers, whereas in
England and Wales, private forensic units are used by the NHS only where no beds
are available in its own facilities. In England and Wales, on the other hand, the
intention is to phase out private involvement in forensic care by building more
forensic units within the National Health Service. Some federal states in Germany
plan to privatize federal forensic facilities.

7.2.8 Forensic Bed Capacities

Wide variations in definition of forensic beds and considerable, yet unknown, num-
bers of undeclared beds for mentally ill offenders in general psychiatry or the prison
system are serious methodological obstacles to calculating forensic bed rates or any
such indicators. Consequently, recent studies to develop a set of European mental
health indicators do not include any estimates of forensic care capacity [8]. The
information available, from some countries in Europe, were:

• The total number of declared forensic beds (for pre- and/or posttrial placement)
• The number of declared forensic beds per 100,000 population (forensic bed rate)

Additional problems of definition have to be considered. Beds on psychiatric or

general prison wards were not included in the estimates, although some countries
occasionally use prison placements for detaining criminally non-responsible offend-
ers. Unspecified forensic beds in general psychiatric hospitals could be identified
for some member states and were included in the total number of forensic beds,
whereas for others the undeclared or unspecified capacities in general mental health-­
care facilities could not be quantified and thus were left out.
The highest rates of forensic beds are in countries like the Netherlands, Germany
or England, whilst the lowest are in Portugal, Spain or Italy. Most of the European
countries have increased the number of forensic beds in the last years [9, 10].
Current data suggest a north-south divide within the Europe, with remarkable
differences between similarly populous countries in Central and Southern Europe
7  Organization and Funding of Forensic Psychiatric Facilities Across Europe 119

(e.g. Austria or Belgium compared to Portugal, or Spain compared to England and

Wales). Low forensic capacities in Italy, Portugal, Spain or Greece might reflect a
different concept of mental health care in those countries, commonly characterized
by low numbers of hospital beds in general psychiatry, home-based care and a con-
siderable burden on the families of the mentally ill. However, it is doubtful whether
general mental health-care conditions in these countries also affect forensic service
provision, given the rather different security considerations and other requirements
of forensic care.
For Central/Eastern European or Scandinavian countries, further analysis is
needed to determine whether high forensic bed rates do indeed reflect a policy of
separating forensic from general mental health care whilst providing adequate
capacity (as could be hypothesized for Germany) or whether there may be other
reasons.
For Eastern European countries, Mundt et al. [11], however, described a mixed
picture with increases in forensic bed numbers between 1999 and 2009  in some
countries (e.g. Hungary, Poland) and decreases in others (e.g. Czech Republic and
Latvia).
The poor reliability of current indicators should always be kept in mind, and
therefore caution should be exercised in drawing any conclusions or making com-
parisons of capacity between European countries.

7.2.9 Preventive Detention

In many countries, preventive detention following forensic treatment of or the

completion of prison sentences by mentally ill or mentally non-disturbed offend-
ers who are considered to be extremely dangerous or resistant to treatment is a
topic of discussion. The measure is seen as a specific means of enhancing public
safety and reducing the risk of reoffending. Most commonly, such measures are
advocated by public opinion or mass media campaigns, especially in the after-
math of spectacular crimes committed by mentally ill or disordered persons.
Many experts consider preventive detention to be a most delicate subject, likely to
seriously tip the balance between public safety and the human rights of the per-
sons concerned if it is not applied with special care and according to clearly
defined legal criteria.
Although criteria or legal procedures may differ, preventive detention is cur-
rently implemented in some states. For example, in Denmark and in Germany
(Sicherungsverwahrung), unlimited detention is possible in cases of dangerous non-
psychotic mentally ill offenders. In Belgium a similar form of preventive detention
exists for severe sex offenders. The measure is ordered at trial. Preventive detention
after completion of a prison sentence or a treatment order is not provided in
Denmark, however. In several states that do not recognize the concept of preventive
detention, civil commitment laws may provide a legal means of continuing deten-
tion of dangerous patients who have served prison sentences in full or have been
discharged from forensic facilities (e.g. in the Netherlands).
120 E. van Lier and V. Tort-Herrando

7.2.10 Lifelong Forensic Placement

Aside from any measures allowing preventive detention, lifelong detention of men-
tally ill offenders can be imposed in some of the states, in the event that the legal or
medical criteria for forensic care are met and are confirmed regularly by reassess-
ment. The frequency of lifelong forensic placements differs, although in general it
does not occur very often. Modalities might vary also. For instance, in England and
Wales, lifelong orders when imposed may allow compulsory supervision of patients
in the community after discharge and allow recall to hospital when they relapse,
whereas in other States, lifelong forensic care means an uninterrupted inpatient stay
in a forensic facility.
In Spain, lifelong forensic care is scarce as the most forensic patients are trans-
ferred to general psychiatric hospitals for continuity of care, and their treatment is
continued often on an involuntary basis after their stay in a forensic hospital. This
situation exists in Spain because a preventive detention does not exist, and mentally
ill offenders cannot be held in a penitentiary psychiatric hospital longer than the
sentence applied. Furthermore, security and capacity problems in general psychia-
try increase the risk of quick discharges or of absconding of these patients.

7.3  upervision and Regulation of Forensic Facilities

S
Across Europe and Its Consequences

Responsibility for funding, supervising and regulating forensic facilities differs

across Europe. Regulation and supervision of facilities and of treatment are a means
of quality control. Although levels and intensity of regulation and supervision may
vary across the Europe, one indication as to whether the main emphasis in forensic
care in a given country is upon the medical or the procedural aspects (e.g. security
aspects) may lie in whether the responsibility for supervision or regulation lies with
the judicial authorities (e.g. the Ministry of Justice) or with a health agency (e.g. the
Ministry of Health). The need of some European regulations (regarding both health
and security as protecting of human rights) could help to harmonize the forensic
facilities across Europe.

7.4 Funding

Forensic placements are funded from varying departmental budgets within the
states, with a substantial financial responsibility for treatment placed upon the
national Ministries of Justice, whereas general mental health care is financed
through health budgets or some joint payments from both departments (Health and
Justice) or a different pay, as in Spain (except Catalonia), by the Home Office
Ministry that take care of the penitentiary services.
The Ministry of Justice is the most common authority for reimbursing the cost of
forensic assessments. Only in England and Wales and Finland is this the
7  Organization and Funding of Forensic Psychiatric Facilities Across Europe 121

responsibility of the Ministry of Health. This might indicate that the forensic assess-
ment is widely conceived of as a legal procedure, whereas the subsequent detain-
ment is seen as a responsibility of national health authorities.
The reimbursement of forensic care by Justice Departments may cause some
problems, e.g. by setting financial incentives for exporting into forensic care men-
tally ill individuals who have committed only minor offences or who are merely
aggressive. This paradoxical and stigmatizing effect, which is likely to undermine
the integration of forensic and general psychiatric care, has been observed at least
in Austria [12].
Even public funding for forensic psychiatry is not popular. In 1993, Reiss and
Roth [13] compared research monies expended in the USA per potential life lost
due to various causes; for cancer it was $794, for AIDS it was $697, for cardiovas-
cular diseases $441, but for violence it was just $31. This funding differential prob-
ably was then and still is similar in other developed countries. Also, research money
is more often granted to short-lived projects [2].
Another difference is means of finance. Currently some countries tend to follow
a similar system funding as in the health system. A fixed budget tends to be less used
and more a funding by objectives (with a diversity or variables like length of stay in
psychiatric settings, type of disorders, type of interventions made and so on).
Some examples of the above described are:
Netherlands: After some serious incidents in the TBS system, political pres-
sure in the Netherlands has risen to reform the system. This has led to an inquiry
by a parliamentary commission on the organization of treatment of forensic
patients. One of the conclusions was to reform the TBS system and other forensic
mental health-care services and was the starting point for treatment in prison in
the penitentiary psychiatric centres (PPC). Political pressure to reform psychiat-
ric care in prison had as a main goal prevention of criminal behaviour after dis-
charge, not the provision of care. With the goal of reducing recidivism in 2007,
financial budget for the improvement of mental health was transferred from the
Ministry of Health, Welfare and Sports to the Ministry of Justice. The prison
service used these funds amongst others to finance forensic capacity in several
community mental health-care facilities throughout the country and to enlarge
the capacity of forensic care units within the prison system with the establish-
ment of penitentiary psychiatric centres. The main goal of treatment in the PPC
is treatment as usual, i.e. equality of care compared to treatment in general psy-
chiatry. Also psychiatric treatment facilities were claimed and financed by the
Ministry of Justice in general psychiatry.
England and Wales: A switch in funding also took place in the UK. From 2000
the NHS was largely responsible for prison mental health (Department of Health
1999 and 2001). Based on the Bradley report [14], the NHS was from April 2013
completely in charge. One of the main recommendations in the Bradley report was
to tackle the over-representation of people with mental health problems in prisons
in England. There were recommendations to divert offenders with mental health
problems from custodial settings, to reduce the waiting time for people who need to
be transferred from prison to hospital for urgent mental health treatment and for the
122 E. van Lier and V. Tort-Herrando

NHS to take on responsibility for providing health services in police stations [15].
The NHS is now responsible for the commissioning of all health services with the
exception of emergency care, ambulance services and out-of-hours services, for
people in prisons in England. These include secondary care services (hospital care)
and public health including substance misuse services. To achieve this goal, there
has been since 2013 a transition from bodies like the NOMS (National Offender
Management Service), individual police forces and Youth Justice Board to the
NHS. The NHS has committed itself to a seamless transfer in provision of services,
using the same standard and quality of care that can be expected in the community
[15]. So in this aspect, there is a parallel to the situation in the Netherlands.
Spain: The assessment of the mentally ill offenders is in the charge of the
Institute of Legal Medicine and Forensic Sciences (professional body that helps
the Magistrate to take decisions related with health problems as mentally ill offend-
ers) and is funded by the Justice Department in all of Spain. The care and treatment
of the mentally ill offenders in prison in Spain is paid by the Home Office
Department (which is in charge of prisons). In Catalonia and the Basque Country,
the Health Department is responsible for the health system in prison (including
mentally ill offenders). Recently, this situation is changing, and in the next years
the Spanish National Health Service will take care of the health care in all prisons.
An increase of the budget has not been discussed, despite the aim to have a system
equivalent to psychiatric services in the community. In Spain, Mental Health
Services are not responsible for the treatment for drug misuse and for sexual and
violent offenders. These programmes are in charge of the rehabilitation services of
the prison system [16, 17].

7.5 Advantages and Disadvantages of Different Systems

The first thing that can come to mind is that treatment follows money, i.e. if there is
no judicial title, there is no surplus finance for treatment. Health care is less funded
in some countries compared to Justice-based finance. This could lead to problems in
continuity of care and does in practice, at least in, for example, the Netherlands. The
problem here is that treatment needs of a patient after discharge remain the same
regardless of the funding type, but in the end, there can be less money available in
general psychiatry. In some European countries, continuity of care is accomplished
better, for example, in Germany, where aftercare is provided in the forensic setting
as opposed to in general psychiatry. There may also be a double standard in provid-
ing mental health care to offenders, i.e. prevention of recidivism versus treatment of
the disorder. Sometimes but not always, these goals overlap, and it is imaginable
that the way the treatment is financed will have its consequences in this respect. In
other words goals of treatment could be set by the financier. It is not always clear
how inclusive treatment should be. For example, should providing housing, work
and so on be part of the deal? Both funding types have pros and cons. For example,
the Ministry of Justice will be inclined to buy services in a prison-like setting, but
the culture in these settings can make it more difficult to treat forensic psychiatric
7  Organization and Funding of Forensic Psychiatric Facilities Across Europe 123

patients sometimes. Treatment in a forensic setting can be difficult in suspects deny-

ing their crime because of the focus on prevention of recidivism. Are they always
capable of providing adequate care? Who wants to work in a prison? Not many
psychiatrists are prepared to work in a prison setting, and not all psychiatrists are
capable to work there [18]. Reality shows equivalence of care can be hard to realize
where the Ministry of Justice is only responsible for financing the treatment, for
example, in Belgium and Hungary. And it is estimated that a shift in resources of 5%
of the budget for criminal justice to health could double the money available for
primary care trusts [19]. Treatment in general psychiatry has the advantage of rely-
ing on a long tradition where treatment in a forensic setting means introducing a
new way of perception for prison staff with all the inherent problems. On the other
hand, general psychiatry will be inclined to deliver psychiatric treatment as usual
and probably has less focus on forensic aspects, like, for example, risk assessment
and management, which can lead to the overseeing or neglect of potential dangerous
behaviour.
Overall, what seems to be most important is the fact that complex ways of
financing lead to problems in cooperation and development of joint projects
between forensic settings and general psychiatry and in the ever so important con-
tinuity of care.

7.6 Continuity of Care

In Austria and Germany, discharges of forensic patients are always conditional.

This could be considered as an appropriate and flexible means to balance patient
rights and interests (e.g. to the shortest possible restriction on liberty) with public
safety.
However, the majority of the Member States seem to favour a medical perspec-
tive, emphasizing the treatment needs of the patient and safety issues as criteria in
discharge decisions. One major disadvantage of this approach is its tendency to
neglect proportion. It could, for instance, condemn a schizophrenic patient ordered
in forensic care because of a minor assault to detention for as long as his illness
prevails.
Time frames for discharges on licence/conditional discharges differ within the
states. Although there are studies suggesting diminishing recidivism rates as a con-
sequence of forensic treatment, the evidence on the risk of reoffending after removal
of restriction orders should be increased.
So, whatever the system, continuity of care has to prevail as the main goal. This
of course can be achieved in many different ways. Looking at the way different
systems are organized, one could assume that, at least in theory, the NHS system
gives more guarantees for continuity. In both the UK and the Netherlands, equiva-
lence of care in prison is a main goal, but there are doubts about achieving this goal
in the UK [20], so in practice there are doubts at least in the UK. In the Dutch sys-
tem, there is a large gap between forensic and general psychiatry. This problem is
accentuated by the fact that there is less money available for treatment 1 year after
124 E. van Lier and V. Tort-Herrando

discharge. It seems that countries were there exist parallel forensic community ser-
vices and general psychiatry services in the community experience a large gap. In
Spain, all the patients that are released and/or have finished their sentence have to
be vinculated to social services in the community. For some people that have no
family or social network or are in illegal status, it is difficult to organize a follow-up
by mental health community services. Although all studies show the importance of
forensic, community and rehab services having a close relationship to maintain and
improve the care given to all patients in the community, in practice this seems hard
to realize regardless of the system organization [21–23].

7.7 Ethical Issues and Public Opinion

Public opinion differs from one country to other but does play a considerable role in
forensic psychiatry. In some countries the problem is stigmatization; in another the
problem is related with some offences (serious offences, sexual offences), and in
some countries, the conditions of living/care seem to be a major problem. There is
little in-deep debate about mentally ill offenders. Nevertheless, public pressure is
rising, for example, in the UK and the Netherlands. Mentally ill patients are associ-
ated by a substantial part of the public as prone to violence. In Spain the discussion
arises when a violent or sexual crime happens but tends to decrease after the trial.
Treatment is, sometimes, seen as a waste of money; absolute security is demanded
from the justice authorities and from forensic psychiatry, and no degree of recidi-
vism seems acceptable. In the public opinion treatment of offenders is hardly toler-
ated and then only if it guarantees absolute security, which is of course impossible.
The matter can draw in the field of mental health care and is the subject of regular
mass media coverage, with enormous public interest in high-profile cases. It is dif-
ficult to explain to the media that most of the mentally ill people are not violent and
most of the times are more a victim than a perpetrator of crime. Psychiatric profes-
sional bodies, like psychiatric associations, need to take more proactive actions to
prevent stigma and place treatment rather than security on the agenda for forensic
mental health-care agencies.

7.8 Ethical Issues and Professional View

When looking at the organization of the forensic mental health-care system, there
are some ethical issues and professional views that need to be taken into consider-
ation. For example, the question rises which patients need to be treated in the foren-
sic field. Are mentally ill offenders to be regarded as “the most vulnerable” who
need to be pulled into treatment, or is there more to it [15]? Sometimes discrepan-
cies exist between general and forensic psychiatrists in their approach to what some
patients’ needs are. Debate may rise as to what level of offending qualifies a patient
for forensic care instead of being treated in general mental health-care facilities, and
the same can apply to the type of offence committed. Being treated in forensic
7  Organization and Funding of Forensic Psychiatric Facilities Across Europe 125

mental health care can cause considerable stigmatization. On the other hand, in
some cases there are doubts whether the care of some violent or sexual offenders
fall in the field of psychiatry. Another issue is what the main goal of treatment is, as
there can be a discrepancy between public protection and treatment benefits of
patients. Is security by treatment an attainable goal and is it ethically right to set this
goal? And what is the optimal level of security needed in each case? Are people
placed in the right level of security that is needed? If maximal security is demanded,
who will pay and how do we proceed to maintain humanitarian principles? In many
cases there seems to be a lack of balance between therapeutic interests and public
protection. Does the way the forensic field is organized and funded affect decisions
made in these matters?

Conclusions
Specialist forensic facilities are the most common type of service in which crimi-
nally non-responsible mentally ill offenders are placed and treated. This type of
care is provided by a wide variety of services depending on legal and health-care
systems, funding types and cultural history (about dealing with mentally ill
offenders). Mentally ill offenders who have committed serious offences and who
are being held as criminally non-responsible (so far as this concept is applicable
in individual member states) constitute the core clientele of forensic facilities,
although there are some exceptions to this rule, most often for reasons of bed
availability or security. Some countries (Finland, France, Ireland, England and
Wales, Sweden) admit aggressive, violent or “high-risk” non-offending mentally
ill individuals to forensic facilities. This is done most often under civil detention
orders, but this is not necessarily so in all cases.
This variety of approaches for detaining and caring for violent mentally ill
patients has not been examined further by international research. Thus, it is
unknown whether one approach is more effective than or superior to others.
From a theoretical point of view, it could support crime prevention to place and
treat aggressive or violent mentally ill patients in forensic facilities, even when
their crime record is blank.
On the other hand, a considerable rise of forensic patients over time could also
indicate insufficient treatment arrangements in general mental health care for
violent mentally ill patients, who are adequately cared for only after having com-
mitted a crime and being placed under forensic regimes.
Variations in definition of forensic beds and considerable, yet unknown, num-
bers of undeclared beds for mentally ill offenders in general psychiatry or the
prison system are serious methodological obstacles to calculating forensic bed
rates or any such indicators. Despite all definition problems, calculation esti-
mates suggest a north-south division within the European Union, with marked
differences between similarly populous countries in Scandinavia, Central and
Southern Europe. Whether low forensic capacities in South European member
states reflect the overall mental health-care standards in those countries (low
numbers of hospital beds in general psychiatry, home-based care and a consider-
able burden on the families) remains to be analysed [6].
126 E. van Lier and V. Tort-Herrando

Although outpatient care is today an integral part of general mental health

care, specialist outpatient care for forensic patients is underdeveloped. Follow-up
may be usual in many states or indeed mandatory in the case of probation orders,
conditional discharge or as a general aftercare measure, but specialist services
are usually lacking. In some countries, informal types of forensic outpatient
care are implemented, when criminally non-responsible mentally ill offenders
representing no public threat are cared for by community mental health
services.
The wide difference in legal and health law in Europe is one of the reasons for
a diversity of models. Ranges from high, medium and low security resources in
the UK, to the TBS system in the Netherlands or others systems like in Spain
present difficulties in summarizing and advocating one highly recommended
system. The same applies to specific problems as sexual offences or severe per-
sonality disorders being treated by forensic services in some countries and by
prison services in others countries and treatment of the most violent offenders in
these facilities as the respective national health system tends to take care of the
petty offences.

7.9 General Recommendations

Although it proves virtually impossible to describe a preferred system for the orga-
nization and funding of forensic mental health care in Europe, due to all the differ-
ences discussed above across Europe, there are some general recommendations to
be made. First, whatever the funding system and service provision system, at least,
the same quality and equivalence to the national standards of each country have to
be ensured for all forensic mental health care. In all countries there should be a
comprehensive forensic service provision including both hospital and community
treatment as well as equivalent psychiatric care in prison settings, when applicable.
All people in forensic settings (both in legal and illegal status) should have the
same level of care. And also continuity of care after patients are discharged from
the forensic services has to be guaranteed. In the next years, the gap between foren-
sic and general psychiatry should be narrowed. And last but not least, the budget
should include some funding for training, education and research in forensic set-
tings [24].

Take-Home Messages
• Equivalence of care should be guaranteed.
• Continuity of care should be guaranteed.
• Availability of finances for training, education and research should be
guaranteed.
• Some anti-stigmatization programmes should be implemented.
7  Organization and Funding of Forensic Psychiatric Facilities Across Europe 127

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 Part III
Specific Skills
Challenging Language Barriers
8
Esperanza Gómez-Durán and Roland Jones

8.1 Introduction

There are more than 20 officially recognised languages, more than 60 indigenous
regional and minority languages and many nonindigenous languages spoken in
Europe [1]. The use of native language helps preserve cultural heritage and identity
and promotes social cohesion among those who share the common tongue. However,
the diversity that is much celebrated is inevitably problematic when there is a need
for communication but no language in common. These problems are no more pro-
found than between users and practitioners of medical and criminal justice systems,
where matters of health, justice and liberty are concerned [2]. Understanding how
to overcome such language barriers is becoming increasingly important for health-
care providers around the world, and an increase in research on language barriers
has been recently reported [3].
In this chapter we discuss areas in which language may be a barrier to effective
communication and to the exchange of knowledge for clinicians. We discuss poten-
tial difficulties in communication in clinical and forensic settings and how they may
be overcome, including clinical interviewing and psychometric assessments. We
also discuss the barriers to professional mobility and the difficulties associated with
the effective dissemination of research and information where language is
concerned.

E. Gómez-Durán (*)
Hestia Duran i Reynals, Barcelona’s Official College of Physicians,
Universitat Internacional de Catalunya, Barcelona, Spain
e-mail: elgomezduran@comb.cat
R. Jones
Division of Forensic Psychiatry, Centre for Addiction and Mental Health (CAMH)
and University of Toronto, Toronto, ON, Canada
e-mail: Roland.jones@camh.ca

© Springer International Publishing AG, part of Springer Nature 2018 131

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_8
132 E. Gómez-Durán and R. Jones

8.2  vercoming Challenges in Communication

O
with Patients

Communication between patient and clinician is fundamental in healthcare but par-

ticularly so in the field of mental health where verbal communication forms the
main channel by which to access the mind of the patient, to elicit and to interpret
precisely what has been said and how.
Even before a consultation has even been arranged, for a non-native speaker,
language may be a significant barrier to accessing healthcare, due to the lack of
comprehensible information about the existence of services and how to access them.
If this can be successfully overcome, the difficulties in communicating and being
understood in the clinical setting are then brought into sharp relief. For example, it
has been shown that poorer communication in consultations with non-native speak-
ers can lead to misunderstanding and non-adherence to treatment [4, 5].
The availability of professional translation services are therefore recommended
to overcome language barriers in the clinical setting, but the situation in European
countries seems heterogeneous. In the United Kingdom, most health services have
policies to support the use of translation and interpreting services for individuals
who have limited proficiency in English. Similarly, translation services can be found
at least telephonically in Spain. In Switzerland, Bischoff and Hudelson [6] found
that the use of an interpreter should be seen as a central and obligatory part of the
consultation.
While the requirement to provide interpretation or translating services is not
explicitly set out in European legislation, there is a legal framework that supports
equality of access to healthcare, which places a public duty on health systems to
ensure staff and service users are treated equitably and not discriminated against
on grounds of ethnicity (notably the European Convention of Human Rights [7]
which has been incorporated in legislation across Europe (Human Rights Act [8],
the Equality Act [9] in the United Kingdom and the Spanish General Law [10] in
Spain). Although there may be an obligation on services to provide translating
services, in practice this may not occur either due to limited funding, failure to
identify need or lack of availability of an interpreter who is proficient in the
required language.
Conducting a clinical interview with the help of an interpreter can pose its own
challenges, and guidelines to assist clinicians working with interpreters have been
published (e.g. [11]). Fundamentally, it is recommended that interpretation should
be carried out by someone who is competent to do so. It is rarely acceptable to rely
on the patient’s friend, relative or child to provide the interpretation service unless
in true emergency, due to issues of confidentiality, impartiality and the quality and
reliability of the translation. Patients have a more positive experience of the con-
sultation when a professional interpreter has been used, and they report the percep-
tion that they have been helped more [12, 13]. In addition, it has been shown that
the use of non-professional interpreters can lead to less disclosure of sensitive
information by patients and can lead to errors in the interpretation of information
obtained [12].
8  Challenging Language Barriers 133

Before a consultation in which an interpreter will be used, it is recommended

that adequate time is allocated for the interview; approximately twice as much
time will be required as compared with an interview with a native speaker. The
clinician should first meet with the interpreter to check that there are no conflicts
of interests, such as any previous knowledge of the patient through family, social
or business relationships. It is also recommended that the subject matter of the
consultation (if known) will be outlined to the interpreter, to check that the inter-
preter will be able to proceed as the subject matter in forensic assessments may be
shocking to those not normally working within this field. It is also recommended
that “ground rules” are discussed with the interpreter to discuss how the interview
will proceed, especially the requirement that everything said by both parties must
be translated.
At the commencement of the interview, it is recommended that the interpreter is
introduced and their role is clarified. The patient should be informed that the inter-
preter is independent and impartial and cannot advise them or provide support. They
should be advised that they will translate everything they say and that they do not
have to pay for the service.
The clinician is advised to carry out the consultation using simple words. Any
medical or technical terms should be explained. It is recommended that a maxi-
mum of one or two sentences should be spoken before pausing for the interpreta-
tion. The language used should be specific and direct and should avoid inferences
(such as “passed away” instead of died) or culturally specific phrases, similes,
idioms or jokes that may not translate with the intended meaning. The clinician
should speak directly to the patient as in a consultation without an interpreter, and
the interpreter should reply using a translation of the patient’s exact words. It is
also important to continually ensure that the patient has understood by assessing
their comprehension regularly during the consultation. Once the consultation is
complete, the patients’ language preferences and communication needs should be
clearly recorded in the patient’s record to ensure staff are aware of the needs of the
patient.

8.3 Language Barriers in Forensic Psychometrics

Psychometric tools are a core component of forensic assessments, yet many tools
published in English have not been translated to other languages. Furthermore,
those translated into another language for use in another country may not have been
validated for use with that population. It is imperative that the highest standards are
upheld in selecting and administering appropriate psychometric measures and in
interpreting the results in light of the known limitations of the instrument [14].
Those limitations may therefore be due to language, for example, that the instru-
ment has been used with a non-native speaker or that the instrument has been trans-
lated but not validated for use in other populations.
The ethical standards for the use of assessment tools as articulated by the American
Psychological Association (section 9.02) highlight the importance of using the tools
134 E. Gómez-Durán and R. Jones

correctly on members of the population for which it has been tested on and appropri-
ate to the individual’s language preference and competence (“unless the use of an
alternative language is relevant to the assessment issues”); if not, they should
“describe the strengths and limitations of test results and interpretation” [15]. Only
assessment instruments whose validity and reliability have been established for the
particular population assessed should be used, yet forensic experts will invariably
confront the challenge of assessing people who, by reason of ethnicity, culture, lan-
guage or other factors, are not well represented in the normative base of frequently
used assessment tools. In such circumstances, experts should interpret the test results
cautiously, with regard to the potential bias and misinterpretation of such results [16].
Table 8.1 shows the translations available for IQ and personality assessments
translated for common European languages. Several of the risk assessment instru-
ments (Classification of Violence Risk (COVR) [17], Historical Clinical Risk
Management (HCR)-20, [18] Level of Service Inventory-Revised (LSI-R) [19],
Structured Assessment of Protective Factors (SAPROF) [20] and Violence Risk
Appraisal Guide (VRAG) [21]) but not all of them, have also been translated into
different languages. It appears that instruments that are frequently used in general
psychiatry are more likely to be translated and validated for languages other than
English compared with forensic instruments. Furthermore, specific training in the
use of the instrument is frequently held in English, limiting the access of those pro-
fessionals nonproficient in this language.
Nevertheless, even properly translated and validated psychometric measures
may suffer as they may contain references to cultural idiosyncrasies. IQ tests and
personality inventories may therefore be less reliable and valid with non-native
English speakers, poorly educated individuals or those in non-Western cultures
[22]. Furthermore, language barriers may not be appropriately compensated by

Table 8.1  Translations available for main forensic tools

Test/languages German French Spanish Italian
IQ measures
Wechsler Adult Hamburg-­ Echelle Escala Wechsler WAIS-IV
Intelligence Wechsler-­ d’intelligence de de Inteligencia
Scale-IV Intelligenztest für Wechsler pour para Adultos
(WAIS-IV) Erwachsene adultes
Personality inventories
MCMI MCMI Inventaire clinique Inventario MCMI
multiaxial de clínico
Millon multiaxial de
Millon
MMPI MMPI Inventaire Inventario Inventario
Multiphasique de multifásico de Multifasico
Personnalité du personalidad de della
Minnesota Minnesota Personalità
Minnesota
PAI PAI Inventaire Inventario de PAI
d’évaluation de evaluación de la
personnalité personalidad
8  Challenging Language Barriers 135

using measures that do not require verbal instructions or responses [16]. Performance
on non-verbal tests can vary significantly based on both cultural background [23]
and educational level [24]. Indeed, the American Board of Professional
Neuropsychology acknowledges that there are cases in which language barriers pre-
clude valid test administration [25].
All of this highlights the dangers inherent in using psychometric instruments as
a primary criterion in making critical decisions, ignoring the fact that they cannot
possibly represent the individual as a whole being within his or her unique life con-
text [26]. For the clinician, the most important thing to remember is that, while
self-report measures have their place, they function best as screening instruments
and should not be used in isolation as diagnostic instruments [27].

8.4 Language Barriers in the Criminal Justice System

Language barriers exist among those in contact with the justice system and have
been described for both offenders and victims. The difficulties may be even more
pronounced if mental health problems are involved [28, 29]. Concerns are particu-
larly high among those whose competency is in question, as they may not even
have the proper assistance of an appointed attorney and an accurate forensic assess-
ment [28]. The European Committee on Crime Problems recognises that foreign
­offenders are more likely to be remanded in custody while awaiting trial and are
more likely to be sentenced to terms of imprisonment after conviction than other
offenders [2].
The increasing numbers of foreign inmates in European prisons provide a chal-
lenge in communication for those detained. In addition to the isolation for non-­
native speakers in prison, the European Council’s European Committee in Crime
Problems has stated that the “inability to communicate in the language most com-
monly spoken in a prison is a severe barrier to foreign prisoners’ ability to partici-
pate in prison life”. It is the root cause of many problems, such as isolation, lack of
access to services, work and other activities, and an inadequate understanding of
prison rules and regulations. Therefore, it is vital that prison authorities make every
effort to facilitate communication and to enable offenders to overcome language
barriers. The problem is exacerbated in those prisons that allow only one language
to be used which could be considered against human rights. In fact, the European
Court of Human Rights considered this aspect combined with the lack of personal
space to decide that a Tajik inmate’s detention conditions in Russia went beyond the
threshold tolerated by Article 3 of the European Convention of Human Rights, pro-
hibiting torture or inhuman or degrading treatment or punishment (European
Convention of Human Rights 2005) [30].
Difficulties increase when several relevant aspects converge, such as suffering a
mental health problem, having committed a crime and not sharing the common
language. Furthermore, it has been suggested that poor language skills associated
with an authoritarian system increase the likelihood of conflicts within the prison
population [31].
136 E. Gómez-Durán and R. Jones

8.5  rofessional Language-Based Barriers: Communication

P
with Colleagues

While non-native English speakers struggle to communicate effectively in English,

native English speakers try hard to understand the many variants of non-native
speakers, overcoming different accents and accepting the language mistakes inevi-
tably made. Getting lost in translation is a problem for both sides.
At a professional level, a clinician’s skills, expertise and knowledge can remain
hidden by language due to difficulties in communication, which may also be a bar-
rier to international mobility and collaboration. Professional experience outside
one’s own country is generally highly appreciated; professionals frequently decide
to study or work abroad, and the amount of multilingual teams is increasing. Even
research funding frequently highlights the importance of multinational studies to
get a comprehensive picture of the phenomena studied. With the increasing devel-
opment in collaborative work, lack of language skills inflicts a particular handicap
on professionals wishing to work internationally. Due to the dominance of English
in the scientific world, this can be harder for those whose primary language is any-
thing other than English.
Regarding collaborative work, several studies have described language barriers in
terms of lower social integration, reduced knowledge sharing or power-authority dis-
tortions [32]. It has been noted that language-related issues can significantly impact
on the formation of trust within teams, with a perceived connection between lan-
guage proficiency and the trustworthiness or competence of team members. It has
been found that negative attributions are made about a colleague’s competence based
on their command of language, with a clear correlation between the magnitude of
these negative attributions and the proficiency of their language [32].
Furthermore, there are “rules” that language is used in an expected and particular
fashion in a given environment and context. If these expectations are not met,
adverse attributions may be made as to the personality of the speaker who may
inadvertently fail to conform to these rules [32]. In addition, less proficient speakers
within a multilingual team may feel negative emotions, avoid native-speakers and
switch to their mother tongue and group with fellow speakers, excluding others.
Hostile stereotyping and emotional conflicts may then ensue, increasing miscom-
munication, uncertainty and anxiety [33].
Given the increasingly diverse nature of many forensic patient populations, mul-
tilingualism in forensic teams may be a future need, and therefore an awareness of
the potential issues may help to mitigate problems.

8.6  rofessional Language-Based Barriers: Professional’s

P
Mobility

Doctors frequently seek employment in countries other than where they trained. In
2011, Dr. Bollen Pinto, president of the Permanent Working Group of European
Junior Doctors, stated that some regulatory bodies were “expressing concerns
8  Challenging Language Barriers 137

regarding the language skills of migrating doctors and might push in the direction
of mandatory language testing”. He went on to say, “This issue is particularly evi-
dent in the UK, where recent cases of alleged malpractice with disastrous results by
foreign doctors came out in the media. Communication problems between doctor
and patient were pointed out as the cause of the problem” [34]. There is no unifor-
mity for the assessment of language proficiency across Europe. Some regulators
require a formal language assessment test post-registration, and some require no
language assessment at all. Requirements by other regulators include a review of
language proficiency by a panel, formal interviews, assessed discussion of a video,
evaluation of the employers or a medical inspector or simply a declaration of profi-
ciency by the individual [34].
Directive 2005/36/EC from the European Commission already provided for the
obligation of professionals to have the necessary language skills. However, the
review of the application of that obligation showed a need to clarify the role of com-
petent authorities and employers, in particular in the interest of ensuring better
patient safety. That Professional Qualifications Directive of the European
Commission was updated in 2013, and several issues regarding language skills were
modified [35]. It was made compulsory “for professions that have patient safety
implications, a declaration about the applicant’s knowledge of the language neces-
sary for practicing the profession in the host Member State”. The new Directive
acknowledges “professionals benefiting from the recognition of professional quali-
fications shall have a knowledge of languages necessary for practicing the profes-
sion in the host Member State”. Therefore, after the recognition of a professional
qualification, a Member State shall ensure that any controls carried out by, or under
the supervision of, the competent authority for controlling compliance with this
obligation shall be limited to the knowledge of one official language of the host
Member State or one administrative language of the host Member State provided
that it is also an official language of the Union. Controls carried out in accordance
with the Directive may be imposed if the profession to be practised has patient
safety implications, but they shall be proportionate to the activity to be pursued.
With regard to psychiatry, proficiency in the local language can be considered
compulsory to practise. Evaluation of psychopathology, as discussed, is done to a
large extent through observation of language use, which may be difficult to assess
for a non-native speaker. Furthermore, specific communication styles may be espe-
cially complex: the use of sayings and proverbs can provide information with direct
relevance to clinical assessment and even treatment, but they can be easily over-
looked by non-native speakers.

8.7 English Dominance in the Scientific Field

Chinese, Spanish, English, Arabic and Hindi are the most widely spoken languages
in the world by the estimated number of native speakers [36]. In Europe, the most
widely spoken mother language is German, followed by Italian, English, French,
Spanish and Polish (European Commission 2012) [1]. Nevertheless, English is the
138 E. Gómez-Durán and R. Jones

most widely used “second” and “learning” language in the world and is the foreign
language that Europeans are most likely to be able to speak (European Commission
2012) [1]. It is extensively used for international communication in business,
finance, technology and, of course, science.
Whether language diversity leads to language barriers depends on the speakers’
proficiency levels [32]. Governments in non-native English-speaking countries
understand the relevance of this issue, and the majority of them have increased the
extent to which students are required to learn foreign languages in the recent years.
Indeed, learning English is mandatory in several European Member States within
primary education; 93.7% of all European students in secondary education learn
English as a foreign language [37]. On the other hand, the global popularity of
English has had an adverse impact on native English speakers’ learning of other
languages [38], with the United Kingdom having the highest share of upper second-
ary school students not learning a foreign language (52%) [37]. Interestingly, this
may damage the prospects of UK professionals in the employment market.

8.8 Language Barriers in the Dissemination of Knowledge

Language barriers may limit scientific discussions. At international scientific meet-

ings, discussions are normally held in English in order to reach as many people as
possible. No matter what language is being used, being a non-native speaker usually
means less fluency of communication; limited vocabulary inhibits fast intellectual
debate and may even prevent the non-native speaker from participating. This may
cause frustration, but more importantly, it prevents ideas, experiences and ­knowledge
from being shared.
Furthermore, scientific literature is predominantly published in English (includ-
ing, as you have noticed, this text). A search of PubMed (one of the most popular
bibliographic databases for published journal articles and citations) in October 2015
found there were over 21 million articles indexed. Of these, over 97% were in
English, with only 1.5% in Spanish, 1.2% of articles in Chinese and only a handful
of articles in Hindi and Arabic. Similarly, another international bibliographic index,
Scopus, showed an overwhelming predominance of articles in English (over 98%)
and only 1.2% in Spanish, 0.6% in Arabic and virtually no articles in Hindi. Global
dominance of English is also found in forensic psychiatry. Figure  8.1 shows the
number of published articles in the main European languages indexed in Scopus,
containing the term “forensic psychiatry”. Out of a total of 25,275, 84.5% were
published in English.
Furthermore the best-rated journals are published in English according to the
Scimago Journal Citation Index. In fact, there are no non-English medical journals
ranked among the top 1000. It follows therefore that authors will reach a larger audi-
ence if they publish in English, and there is clear evidence that even non-native
8  Challenging Language Barriers 139

1300

1100

English (21370)

Italian (118)
900
Spanish (133)

Polish (226)
700
French (707)

German (1130)

500

300

100
Before…
1971
1973
1975
1977
1979
1981
1983
1985
1987
1989
1991
1993
1995
1997
1999
2001
2003
2005
2007
2009
2011
2013
2015
−100

Fig. 8.1  Forensic psychiatry articles in Scopus by European languages

English authors chose to do this. According to the Scimago Journal and Country
Rank reports, the English-speaking countries, the United States, Canada, the United
Kingdom and Australia between them, accounted for 41% of published academic
literature between 1996 and 2014, yet around 97% of scientific papers were pub-
lished in English. It is evident therefore that authors from non-native English-­
speaking countries tend to publish in English; however, for others, it may prevent
researchers and clinicians publishing at all, leaving important findings unpublished.
Although non-native English-speaking authors may make an effort to publish in
English, it does not necessarily follow that all of their non-native English colleagues
are multilingual. Language barriers may therefore prevent professionals in a given
country from accessing published information about research in their own country
because it has been published in a different language.
140 E. Gómez-Durán and R. Jones

8.9 A Spanish Forensic Psychiatrist in Wales

Wales welcomed me (Dr Esperanza L.  Gómez-Durán), with open arms several
years ago, despite the language difficulties. Having been born in the south of Spain,
in an area of intense tourism, English can be considered obligatory and has always
been in my life. However, when trying to develop yourself in the professional field
in another language, you feel almost gagged. In addition to the logical pressure to
adapt to a new environment, there is an obvious limitation to communicate as you
wish.
The cultural differences between Spain and the United Kingdom can seem like
an abyss when you approach your English colleagues in an excessively close, too
direct and probably even impolite manner from the English perspective. This man-
ner and sometimes a confusing speech is an obvious barrier. I remember surprising
myself, offering an international referent the incomparable opportunity to collabo-
rate with me, when in fact I was trying to ask for her appreciated supervision of my
project. Fortunately, I always found understanding.
Cultural differences also act when you do not behave as your patients expect or
you are unable to interpret their gestures or behaviour, something essential in
psychiatry.
All this is surely more important than the difficulties with the content of the
speech, but the content is also important. The fluency and rapidity of the reaction,
the correct and measured choice of words and the mastery of the dialectic are of
utmost necessity in clinical psychiatry but even more so in the forensic environ-
ment. Language as a tool of communication but also of analysis and management of
the situation in psychiatry limits exercise in a non-native language.
From my perspective, practising as a forensic psychiatrist in an environment
that communicates in another language and is culturally driven otherwise is an
important limitation of the service you can offer. The same must be kept in mind
when it is the patient who has to handle in a language and culture that is not his
own. Our obligation is to provide a quality service; therefore, professionals
must train, and the system must provide the necessary resources to save barriers,
irrespective of the origin and language of the different actors in the process.

Conclusion
The inability to communicate effectively as a clinician, whether with patients or
with colleagues, can provide an isolating experience for those involved. Incorrect
and usually less favourable judgements and inferences may be made of those
who cannot speak the native language by those who do. This can be particularly
problematic and can have significant consequences for those involved in the
forensic mental health or criminal justice systems. An awareness of this bias
(including the limitations of clinical assessments and psychometric instruments
in non-native speakers), and the imperative to provide adequate systems and
resources to enable effective communication, may reduce the disadvantage that
the non-native speaker experiences.
8  Challenging Language Barriers 141

Take-Home Messages
• There is a bias towards incorrect and often unfavourable judgements
towards individuals who do not speak the native language in a given
country.
• The use of a professional interpreter is essential if patient and clinician do
not share fluency in a common language; there may be a legal as well as
practical and ethical imperative to do so.
• Administration and interpretation of psychometric tests must consider
limitations of the test, such as whether it has been validated for the relevant
population or used with a non-native speaker.
• Language can be a barrier to clinicians’ international professional ­mobility,
their ability to integrate with clinical teams and to communicate with
patients. The dominance of English in the scientific community may also
be a barrier to participate in scientific debate and dissemination of
­knowledge among non-native English speakers.

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Multi-agency Working
9
Lindsay Thomson, Kris Goethals, Joachim Nitschke,
and Norbert Nedopil

9.1 Introduction

In some countries the increasing sophistication of forensic mental health sys-

tems has led to the development of multi-agency working. Traditionally, as in
other areas of medical practice, decisions on patient care were largely taken by
doctors and nurses. In recent years with the development of care in the commu-
nity, the clinical and political focus on risk of harm to others and the recognised
need to work beyond traditional health and social care boundaries and into other
areas of public life, the concept and processes of multi-agency working have
been developed [1, 2].
In this chapter we will define multi-agency working, provide examples of this
within Europe, consider the pros and cons of multi-agency working and develop
ideas for its future improvement [3].

L. Thomson (*)
Division of Psychiatry, University of Edinburgh, Kennedy Tower, Edinburgh, UK
e-mail: L.D.G.Thomson@ed.ac.uk
K. Goethals
Collaborative Antwerp Psychiatric Research Institute (CAPRI), Faculty of Medicine
and Health Sciences, Antwerp University Hospital, University Forensic Centre (UFC)
and University of Antwerp, Edegem/Wilrijk, Belgium
e-mail: kris.goethals@uantwerpen.be
J. Nitschke
Klinik für forensische Psychiatrie, Bezirksklinikum Ansbach, Ansbach, Germany
e-mail: Joachim.Nitschke@bezirkskliniken-mfr.de
N. Nedopil
Department of Forensic Psychiatry, Psychiatric Hospital of the University (LMU)
of München, Munich, Bavaria, Germany
e-mail: norbert.nedopil@med.uni-muenchen.de

© Springer International Publishing AG, part of Springer Nature 2018 143

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_9
144 L. Thomson et al.

9.2 Definition

Multi-agency working in forensic mental health is defined as the coming together of

people from different professional backgrounds, organisations and services, some-
times with varying primary purposes but with the common aim of improving public
safety and decreasing an individual’s risk of harm to others [3].
Examples of multi-agency working include the round table meetings in Germany,
the multi-agency public protection arrangements in the United Kingdom, safety
houses in the Netherlands and PSP (police, social services and psychiatry) coopera-
tion in Denmark. Each is discussed in turn, and the first section contains a historical
perspective which is largely applicable to all four countries.

9.3 Multi-agency Work: Historical Perspective

Working in forensic psychiatry is by definition and in practice an interdisciplinary

and a multi-agency task. Treatment and rehabilitation have always been the work of
several professions. Originally this was carried out by nursing and medicine, with
nurses forming the backbone of the institutions and doing most of the work of treat-
ment and control, and the few doctors employed making decisions on clinical care
and taking overall responsibility. The two professions were dependent on each other
and had a common goal and a common employer, so their work has to be considered
interdisciplinary. In addition assessment and treatment of offenders always meant
interaction with the judicial system. Final decisions on hospitalisation or release
from hospital in the more serious forensic cases have never been made by nurses or
psychiatrists but by courts or similar deciding bodies. These decision-makers
belonged to a different system and quite often did not have the same goals as the
medical system; still cooperation was necessary and had some features of multi-­
agency work. Several decades ago the system was clearly hierarchical in nature:
final decisions being made by members of the judicial or political system and the
treatment being organised by the medical profession within the framework of these
decisions and carried out by the nursing staff.
In the second half of the twentieth century, a number of other professionals
entered the treatment and rehabilitation process of forensic psychiatric patients such
as psychologists, social workers, occupational therapists, arts therapists, pharma-
cists, activity specialists and teachers. The incorporation of the different profession-
als into a team with a common goal made interdisciplinary work more necessary
and less hierarchical. It also helped to create forms and rules for cooperation and
interdisciplinary work. Still the different professionals were employed by the same
agency and by that forced to adhere to similar principals and goals. Institutions,
however, had to cooperate with the education administration in order to find ways
for the accreditation of their schooling and professional training, and this was a
starting point into multi-agency cooperation.
In the late 1970s in many countries forensic psychiatry started to be more con-
cerned with a continuation of treatment and rehabilitation after the release of
9  Multi-agency Working 145

patients from secure hospitals and in transition management from inpatient to out-
patient treatment. These developments made it necessary at times to include courts
and probation officers in the management plans. This was initially done informally
in most cases, based on personal contacts at least as far as the German-speaking
countries are concerned. Eventually not only probation officers but also welfare
organisations, which provided housing or work for disabled persons, were included
into the management of released patients and also into the preparation for release.
The agents of the collaboration were not only from different professional back-
grounds but also belonged to different agencies.
When outpatient forensic treatment and transition management proved to be suc-
cessful [4–6], the collaborations were increasingly formalised and even imple-
mented into legal or administrative concepts. The formalisation of the collaboration
also meant a shift from a more medical therapeutic principle to a more safety-­
orientated principle. This included an increasing involvement of the agents of the
judicial system and the participation of police officers. When these collaborations
started, the intentions of the protagonists from the different professions were varied:
social workers had the well-being of the patient in mind, probation officers were
concerned about prevention of recidivism and police officers focussed on the safety
of the neighbourhood; some were more concerned about avoiding publicity or pro-
tecting their superiors from unpleasant questioning. In many cases, however, col-
laboration created mutual trust and understanding for the position and intention—and
restraints—of the other professions, and it helped to speed up information exchange
and decision-making and to improve tolerance and support. That again proved to be
an effective strategy in preventing relapse and reconviction of former forensic
patients. The interactions between the different professionals were guided much
less hierarchically but more so by a set of rules which were either provided by laws
or by administrative regulations.
These developments were most prominently and formally established in the
United Kingdom with the introduction of MAPPA (multi-agency public protection
arrangements) and in Germany with the “round table”.

9.4 The “Round Table” in Germany

The German “round table” involves formalised meetings, in which clinical outpa-
tient services, probation officers and police are briefed on an individual’s package
of care and consider whether additional measures need to be taken to improve the
integration of the patient into the community and the safety of the public. Other
professions (providers of housing, community social workers and sometimes law-
yers or members of the judicial system) are invited to participate in these meetings
as required.
The quality and effectiveness of this multi-agency approach depend on the par-
ticipants, and at times this has been unhelpful. For example, a police officer informed
a community that a released sex offender had been sent to a halfway house located
in their neighbourhood. This caused public consternation and the refusal by the
146 L. Thomson et al.

housing department to provide accommodation at the time of release to a 72-year-­

old man. However, in spite of such incidents, systematic evaluation showed an
improved outcome for forensic patients after the introduction of this multi-agency
approach [7]. Relapse rates for violent re-offences by patients released from foren-
sic institutions dropped from around 15% [8] to 6% [9] after the introduction of
forensic aftercare and to 1.8% following the implementation of the round table into
the aftercare of these patients [7]. All studies considered a time at risk of about
5 years.
Recognition of the communication difficulties between round table participants
and the potential to learn from other professional groups lead to the development of
interagency seminars involving police, forensic psychiatrists and psychologists and
the development of common interests and goals [10, 11]. Seminar subjects included
the use of psychiatric and psychological knowledge to improve the identification of
offenders following a crime and crime scene analysis and integration of crime scene
information treatment, risk assessment and risk management, employing a scenario
analysis as a model for identifying the contextual variables which precipitate risk
and the individual precursors of risk [12].
The development of multi-agency work has had two significant further
advantages. Firstly, the feedback to the inpatient institutions led to a much
more careful planning and preparation for release of mentally ill offenders
from hospital in cooperation with the interdisciplinary aftercare team [13, 14].
Secondly, it leads to a greater focus on prevention. For more than 20 years, it
has been acknowledged that forensic psychiatry is part of a system of crime
prevention. Prevention however starts earlier than the hospitalisation of a men-
tally ill offender. It starts in general adult psychiatry where patients should be
prevented from becoming forensic patients, and it starts with the young who
should be prevented from becoming involved in antisocial behaviours. This is
another field for multi-agency work and means collaboration with general adult
psychiatry for risk identification and management and with schools in prob-
lematic neighbourhoods [15]. The experience with multi-agency work has low-
ered the threshold for forensic psychiatrists to actively engage with these
activities.

9.5  ulti-agency Public Protection Arrangements

M
in the United Kingdom

In the United Kingdom (UK), the multi-agency public protection arrangements

(MAPPA) [16] were developed in England and Wales under the Criminal Justice
and Court Services Act [17] and updated by the Criminal Justice Act 2003
(Sections 325–327) to manage the risk of harm to others by offenders. Under
MAPPA the police, probation and prison services must work together to manage
the risks posed by dangerous offenders in the community. There is a statutory duty
9  Multi-agency Working 147

to participate in MAPPA for health, housing, social services, education, social

security and employment services, the United Kingdom Border Agency, youth
offending teams and electronic monitoring providers. MAPPA has three levels of
response based on an individual’s perceived risk level, media interest and com-
plexity of management, in particular the involvement of multiple agencies in the
coordination of care. Level one cases are managed mainly by one agency, whereas
level two cases require active involvement of more than one agency meeting com-
plex needs. Level three concerns a small number of very complex cases where the
risk of serious harm is considered to be high, and/or there is high media interest.
Levels one and two typically involve advice and checking of arrangements for the
management of risk; whilst level three will involve a multi-agency public protec-
tion panel to review in detail the arrangements for an individual’s risk
management.
In 2015 there were 68,214 MAPPA-eligible offenders in England and Wales:
73% were registered sexual offenders, 27% violent offenders and less than 1%
other dangerous offenders. Ninety-eight percent of cases were managed at
Level 1. 222 MAPPA-eligible offenders were charged with serious further
offences [18].
In Northern Ireland, a Multi-Agency Sex Offender Risk Assessment and
Management (MASRAM) strategy was established in 2001 with voluntary agree-
ments between agencies. The MASRAM arrangements were made statutory and
renamed Public Protection Arrangements Northern Ireland (PPANI) under the
Criminal Justice (NI) Order 2008. It is similar to MAPPA but has Local Area Public
Protection Panels (LAPPP) and has two lay members of the public on its Senior
Management Boards. In 2014–2015  in Northern Ireland, there were 1363 sex
offenders and 697 violent offenders subject to PPANI: 1896 were on Category l, 142
on Category 2 and 22 on Category 3; 24 were being managed by the Public
Protection Team [19].
The Management of Offenders etc. (Scotland) Act [20] established multi-agency
public protection arrangements in Scotland. These required that the police, local
authorities and Scottish Prison Service established joint arrangements to assess and
manage the risk posed by sexual and violent offenders. The National Health Service
(NHS) is involved where the sexual and violent offenders are also offenders with
mental disorders. Its purpose is exactly the same as that in England and Wales, and
its work is supported by the Violent and Sex Offender Register (ViSOR), a UK-wide
computer database. In Scotland the National Health Service has developed an infor-
mation sharing concordat with its MAPPA partners, set up a Forensic Network
MAPPA Health Group and delivered training on risk and MAPPA processes through
the School of Forensic Mental Health.
MAPPA was introduced initially for registered sex offenders in April 2007 and
then for restricted offenders with mental disorders in April 2008 [21]. It also includes
other offenders who are assessed by the Responsible Authorities as posing a risk of
serious harm by reason of their conviction. In 2015 there were 4544 registered sex
148 L. Thomson et al.

offenders in the community or in custody subject to Level 1 MAPPA, 234 on Level

2 and 9 on Level 3; 3767 were in the community, 331 were reported for breaches of
notification, 69 were convicted of a further violent or indecent offence and 11 were
wanted (known to be avoiding police detection) [22].

9.6 Safety Houses in the Netherlands

In the Netherlands, the concept of safety houses has been developed to deal with
complex issues and to reduce nuisance, domestic violence and criminality by multi-­
agency identification of problems and solutions and the joint implementation of the
latter. These are partnerships involving the criminal justice system, mental health
services and local authorities (municipal partners and board). A safety house is not
a building but the name for the partnership between several agencies.
Nowadays there are about 40 safety houses in the Netherlands, but their number
will decrease to 25 due to merging. Some partners participate in all of them: local
authorities, police, prosecution services, child protection agency, probation services
and welfare services. Some partners are not yet represented in all safety houses,
such as general social welfare and addiction care.
Safety house participants deal with complex cases. These are defined by the follow-
ing criteria: there are multiple problems in one or more areas of living that will result
in criminal behaviour and/or nuisance or further social decline; cooperation between
partners in multiple areas is required to achieve an effective approach; the problem is
influenced by and has an impact on the family and social system and/or the immediate
social environment (or is expected to have an influence on it); and there are severe local
or area-specific safety problems, which require a multiple service response approach.
The major areas of work for safety houses involve juvenile offending, domestic
violence, care packages for released detainees and recidivism. The Ministry of
Safety and Justice developed a national framework to improve transparency and
consensus about the work of safety houses but left room for local initiatives [23].
There are four components to the work of the safety houses:

Person-oriented: Adult repeat offenders, criminal youth and domestic violence

offenders are given a person-oriented approach. On the basis of an individual
plan that is drawn up jointly by the partners, the offender will get community
service, a fine or imprisonment or a mental health disposal. The aim of this
person-­oriented approach is to detect violent offenders quickly, to punish them
effectively and to monitor them closely. Partners, such as prosecution and youth
care, investigate what is known about an offender. This allows the judge to
impose conditional sentences tailored to specific conditions.
Territorial: Each of the 25 safety regions in the Netherlands have at least one safety
house. Each municipality in this region can join the safety house. Due to this ter-
ritorial approach, partners can easily anticipate problems in specific areas or
neighbourhoods, such as tackling nuisance behaviour.
9  Multi-agency Working 149

System aimed: Partners examine the system, such as the family or group, in which
the offender operates. Interventions can be targeted to the family or group when
appropriate.
Victim-oriented: Support for victims can be provided by provision of information,
mediation or assistance in filing a written victim statement.

In 2014 a “Privacy Governance Guide to Safety Houses” was published [24].

This guide is a practical tool for the sensitive handling of personal data in and
around the safety house. This processing of personal data may conflict with the right
to privacy of the individual. The guide has limited advice on what is permissible as
the legality of data processing is based on the individual circumstance in which it
was done.

9.7 Denmark

In Denmark multi-agency working between the police, social services and psy-
chiatry has been developed [25]. It is known as the PSP cooperation. This has
been in place as a national system since 2009 but was originally developed by one
police force in 2004 following concerns about their ability to handle vulnerable
individuals who because of their social problems, mental disorders or substance
abuse and multiple needs did not get the required services. The PSP cooperation
is organised at a managerial and an operational level. Both involve one representa-
tive from the three bodies either at a managerial level or an experienced level,
respectively. There is always a coordinator who is a member of the managerial
group. The managerial group meets quarterly and has responsibility for the devel-
opment of the overall framework and training. The operational group meets
monthly, works on specific cases and coordinates actions between the involved
bodies. Typically, in one area between 1 and 3 individuals were discussed at each
operational group meeting. This system applies currently only to individuals over
the age of 18.
Attendance by members is compulsory. Each meeting is minuted. The PSP coop-
eration pulls together information about vulnerable individuals and their situation in
order to acquire the services of the most appropriate body. Actions will be desig-
nated for one body. Amendments to the Danish Judicial Code, to the Administration
of Justice Act and Processing of Personal Data Act in 2009 have reduced concerns
about professional confidentiality.
An evaluation of the PSP model was carried out using two qualitative studies
between 2008 and 2010 [25]. It was found that the PSP cooperation reduced
social disruption and crime in the vulnerable individuals identified and provided
improved support. The bodies concerned identified improved service coordina-
tion, feedback and sharing of experiences as major benefits of the PSP coopera-
tion. These findings are based on qualitative research rather than on specific
data.
150 L. Thomson et al.

9.8 Elsewhere in Europe

The Ghent Group, an established cohort of forensic psychiatrists interested in edu-

cation and research, was used as source of information in multi-agency working in
other countries ([26]; www.ghentgroup.eu). No other structured system of multi-­
agency working was described. Many countries, for example, Switzerland, have a
system whereby intermittently round table discussions do take place. Similarly, in
Italy occasional meetings are held about individual patients between local mental
health units and judicial services with the aim of tracking the patient, but this
depends on individual and local sensibilities and availabilities. All countries, for
example, Spain, described some form of probation service, but this is specifically
for sentenced prisoners on release. Portugal has a Technical Committee within pris-
ons that is responsible for advice on individual treatment programmes, appraising
results and suggesting options, on any proposed changes to the courts concerning
penal conditions, on the implementation of disciplinary measures to prisoners and
on the matters that are brought to the attention of the judiciary. Some countries, such
as Ireland, described joint working and established committees on policy between
health and justice. This was not about specific cases. Some countries gave examples
of specific multi-agency clinical initiatives such as a clinic for the “triply troubled”
in Sweden with joint working between forensic psychiatry services, the Centre for
Dependency Disorders and the Probation Services [27] or the Serious Offender
Liaison Service in Scotland [28], but neither is available across their entire
country.

9.9 Improving Multi-agency Working

These four examples of multi-agency working in Germany, the United Kingdom,

the Netherlands and Denmark demonstrate some of the issues involved with this
approach. The potential advantages of multi-agency working include a sharing of
the burden of responsibility, particularly in the event of an adverse outcome; clar-
ity on responsibilities, for example, a clear statement on which service and which
individual will do what, within a specified timescale and at a specified place,
with actions to be taken if this does not occur; engagement with difficult people
that might otherwise be rejected by mental health services; a reduction in cost to
society—for example, in Bavaria, violent recidivism reduced from 12% to 1.2%
following the introduction of multi-agency working [7]; encouragement of infor-
mal collaboration and development of relationships; case review and broadening
the perspective on a case from a particular professional standpoint alone;
improvement in continuity of care; promotion of sharing of information on a
proportional basis; and shared educational opportunities. Potential disadvantages
include breach of confidentiality and sharing of information in a nonproportional
way; continued intrusion into an individual’s life; and cost of multi-agency
9  Multi-agency Working 151

working both in terms of infrastructure financing and opportunity costs due to

meetings.

Conclusion
It is our view that the advantages of multi-agency working out way the disadvan-
tages but that more should be done to improve this. This should include
­educational visits between different agencies to improve understanding of their
purpose, working methods and organisation; development of training in multi-
agency working; creation of a multi-agency peer review system to examine ser-
vices, issues and educational requirements; promotion of a statutory framework
to multi-agency working; research to determine outcomes from multi-agency
working; adequate resourcing; development of information sharing protocols
including guidance on balancing confidentiality against information sharing to
allow management of risk [29]; and establishment of rules of working such as
duty to attend, time limits, role of the chair and clarity of purpose, that is, the
reduction of risk of harm to others.

Take-Home Messages
• Multi-agency working in forensic mental health is defined as the coming
together of people from different professional backgrounds, organisations
and services, sometimes with varying primary purposes, but with the com-
mon aim of improving public safety and decreasing an individual’s risk of
harm to others.
• Specific systems for multi-agency working in Europe include the round
table (Germany), multi-agency public protection arrangements (the United
Kingdom), safety houses (the Netherlands) and police, social services and
psychiatry cooperation (Denmark).
• Potential advantages of multi-agency working include a sharing of the bur-
den of responsibility, clarity on responsibilities, engagement with difficult
people that might otherwise be rejected by mental health services, reduced
recidivism, encouragement of informal collaboration and development of
relationships, case review and broadening the perspective from a particular
professional standpoint alone, improvement in continuity of care, promo-
tion of sharing of information on a proportional basis and shared educa-
tional opportunities.
• Potential disadvantages include breach of confidentiality, continued intru-
sion into an individual’s life and cost of multi-agency working both in
terms of infrastructure financing and opportunity costs.

Acknowledgement  Thank you to the members of the Ghent Group who gave information on
multi-agency working within their countries.
152 L. Thomson et al.

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The Roles of Forensic Psychiatrists
and Psychologists: Professional Experts, 10
Service Providers, Therapists, or All
Things for All People?

Thierry Pham and Pamela Taylor

10.1 Forensic Mental Health Professionals in Europe

The practice of forensic psychiatry varies between European countries, but our core
values and recognition of its various possible roles have much in common. Where
there is speciality recognition in the field of forensic mental health, other clinical
professionals generally subscribe to a similar position. For forensic psychiatrists,
the common ground is sufficiently great that the Ghent Group, an informal group of
forensic psychiatrists from all European Union countries, readily agreed on a defini-
tion of forensic psychiatry (http://www.ghentgroup.eu/). This had to support the
various roles in the speciality and acknowledge its medical roots and ethic. The
extensive knowledge base required includes, but is not confined to, psychological
medicine in all its aspects, relevant law, criminal and civil justice systems, mental
health systems, and the relationships between mental disorder, antisocial behavior,
and offending. The highly specialist skills required to encompass risk assessment
and management, the giving of evidence in court and the management of care and
treatment in secure settings. We recognize the developmental roots of offending and
disorder (singly and in combination) in histories of victim experiences and failures
of attachment and the relevance of these to the prevention of further victimization.
The Ghent group definition of forensic psychiatry is:

T. Pham, Ph.D. (*)

Forensic Psychology, UMons, Mons, Belgium
Centre de Recherche en Défense Sociale, Tournai, Belgium
e-mail: Thierry.PHAMHOANG@umons.ac.be; thierry.pham@crds.be
P. Taylor, C.B.E., M.B.B.S., M.R.C.P
Division of Psychological Medicine and Clinical Neurosciences,
Cardiff University School of Medicine, Cardiff, UK
e-mail: taylorpj2@cardiff.ac.uk

© Springer International Publishing AG, part of Springer Nature 2018 155

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_10
156 T. Pham and P. Taylor

–– A specialty of medicine based on a detailed knowledge of relevant legal issues,

criminal and civil justice systems, and the relationship between mental disorder,
antisocial behavior, and offending. Its purpose is the care and treatment of men-
tally disordered offenders, and others requiring similar services, including risk
assessment and management and the prevention of further victimization.

Once it is acknowledged that care and treatment of offenders with mental disor-
der are at the heart of our work, then it is also apparent that in almost every role,
there are tensions to be recognized and resolved if all relevant roles are to be taken
up effectively and ethically. This is not unusual in medicine, since in any specialty,
there are occasions when the well-being and wishes of the patient, generally the
guiding principle for any doctor, cannot be the only consideration. Anyone with a
highly infectious or contagious condition, for example, will require the best possi-
ble care and treatment for that condition but, on occasion, may have to be treated in
isolation from others, whether s/he wishes to be or not, because of the seriousness
of the condition should it spread to others. Perhaps the most often tension consid-
ered for forensic mental health clinicians is the interface between having a person in
treatment as a patient and being requested to provide expert evidence to a court on
some aspect of that individual’s suffering or behavior. If an individual is taken into
forensic mental health services, however, someone has to take legal responsibility
for that individual’s care and control and confinement—“the responsible clini-
cian”—which means that s/he will be closely involved in defending continuing
detention or petitioning discharge. To what extent can such a “custodian” also be a
therapist? Then, by definition, forensic mental health professionals not only work
within a multidisciplinary clinical team, where ethics and standards of behavior can
generally be agreed with relative ease, but most also have an interagency role which
works with the courts but extends far more widely too. This role relates most closely
to public safety and membership of such groups and processes, such as the Multi-­
Agency Public Protection Arrangements (MAPPA) in England and Wales, as
described and regularly updated by the Ministry of Justice (www.mappa.justice.
gov.uk), with professional guidance provided by the Royal College of Psychiatrists
[1] or the Round Table in Germany [2]. Under such conditions, clinicians find them-
selves required to share usually protected clinical information, albeit the minimum
necessary, with the police, housing bodies, and other community agencies with
entirely different but no less valid concerns and ethical models than clinicians.
Another aspect of promoting clinical safety is enshrined in duties to victims of the
actions of offender-patients. In the UK, for example, roles in this respect are embed-
ded in law—The Domestic Violence, Crime and Victims Act 2004. In the criminal
justice system, victims and offender issues are explicitly covered by different peo-
ple, but there is a disproportionately high likelihood that patients in forensic mental
health services have attacked someone within their family, or close social circle [3]
means that these roles can rarely be so neatly circumscribed, bringing an extra ten-
sion to them. Duties to inform the victim about review hearings and support them in
giving evidence to these if they wish, generally fall to dedicated staff within the
probation service, but the patient’s responsible clinician must be satisfied that this
10  The Roles of Forensic Psychiatrists and Psychologists: Professional Experts 157

has taken place and cooperate with the necessary process. The victim may be
allowed to specify conditions of release, such as limits to where the offender patient
may live or travel, and the clinical team must abide by these too. In still further
roles—and the tensions inherent in them—we have more in common than not with
other clinical specialties, but still they have to be acknowledged and kept under
review. Teaching and training, research, service development and management,
standard setting and monitoring, and public advocacy for our service users and their
services are all tasks at the core of good practice. While many of the tensions in
these roles will be around time management—the balance between time given to
reviews and time allocated to actual clinical care—we also have to be able to deal
with such matters as confidentiality when outside agencies need good enough infor-
mation to complete an adequate inspection. When people are in desperate need of
services but in our considered judgment those services cannot be delivered effec-
tively, when should we make this a matter of public debate? When should we walk
away from trying to deliver a service that we have grounds for judging inadequate?
These last are not idle questions for an exercise in debate. In England and Wales, for
example, where a number of prison officers have been cut in the face of a continuing
rise in the prison population and well-documented contemporaneous rise in suicide,
self-harm and assaults, at least one forensic psychiatrist makes the decision to walk
away from a service that she thought could not be delivered adequately rather than
risk colluding in any pretext that the existing situation can be supported. Even the
highest quality mental health services in prisons are dependent on adequate general
prison staffing for ensuring appropriate and timely access to prisoners.

10.2 Psychologist Roles

Haward [4, 5] detailed the expert roles of psychologists as: “clinical,” “actuarial,”
“advisory,” and “experimental.” For psychologists, even the most frequently
requested role—the clinical—relies much more on formal testing than it would for
psychiatrists. The psychologist would generally use tests with established reliability
and validity of, for example, IQ, personality characteristics, or neuropsychological
functioning, although, in some part, the training of clinical psychologists is now
viewed as preparing them for the task of diagnosis [6].
Actuarial roles involve offering statistical probabilities of an event. While a
plethora of risk assessment tools have been developed, investigated and reported in
the literature, in the field of mental health, it is exceptionally difficult to use even
these in real-life situations. Systematic reviews of research evaluation of these
tools show the apparent limits to their predictive power in practice (e.g., [7]).
Although hard to prove, this is more than likely due to the fact that when used in
clinical practice, they are coupled with risk management. Perhaps in this context,
we should be disappointed that these tools do not apparently seriously overpredict
dangerous behaviors, but the low base rate of serious offending is another relevant
explanation here. The great advantage of these tools is that they can produce
improvements in transparency of how risk determinations are made, although a
158 T. Pham and P. Taylor

potential problem is that any attempt to present information numerically—as risk

scores—can give rise to implications about their scientific strength which are not
justified. In other circumstances, in the UK, a pediatrician’s use of probability
estimates of the chances of “cot death” explaining the deaths of two babies was a
major factor in their mother being convicted of killing them. The impressive sound-
ing estimates were, however, wrong and led not only to a miscarriage of justice in
this case but also in a series of similar cases. The Royal Statistical Society consid-
ered the matter and issued guidance on communicating expert statistical evidence
in court [8].
The evaluation of competency provides an illustration of the evolution of foren-
sic psychology and of how the advisory role has developed. Determination of com-
petency is a court decision based on clinical opinion, and never, in law, a clinical
decision. Nicholson and Kugler [9] conducted a review of comparative research on
defendants tested for competency to stand trial before the criminal courts. They
found 30 studies encompassing 8170 people between them. In terms of effect sizes,
the strongest characteristics related to incompetency were (a) poor performance on
psychological tests or interviews specifically designed to assess legally relevant
functional abilities, (b) a diagnosis of psychosis, and (c) psychiatric symptoms
reflecting severe psychopathology. To a lesser degree, traditional psychological
tests, previous psychiatric hospitalization, previous legal involvement, marital
resources, and demographic characteristics were also related to competency status.
Thus, bringing together a mix of loosely structured and more rigidly structured
assessments may be optimal.
Perhaps one of the most exciting areas in which psychologists have contributed
to court work is that of relevant “experiment.” Gudjonsson has taken a leading role
in this field. While perhaps best known for his development of tests of suggestibil-
ity, which, in the UK have been so crucial in avoiding or helping to overturn miscar-
riages of justice (e.g., [10]), he has also shown how tailoring tests to the needs of
individual cases can shed light on limits to competence or on relevant but highly
specific deficits. An example of the former was to elucidate the extent of abilities of
a young woman with intellectual disability to give accurate evidence to the court
about her assailant; the defendant’s lawyers introduced arguments that she was
wholly incompetent, but tests devised for the specific circumstance showed that in
crucial areas of, for example, visual identification, she could be accurate and have
accurate recall [11]. In another case, a man had inexplicably attacked his wife;
through detailed neuropsychological testing, he was able to offer an explanation
which was accepted by the court [12].
In the domain of civil law, there is an increasing demand for clinical neuropsy-
chologists to assess and testify on disability and individual injury in compensation
cases. In the domain of domestic and family law, clinical forensic psychologists play
is also expected to play a substantial role [13]. Furthermore, many jurisdictions allow
expert testimony on whether a child has been the victim of sexual abuse, an area
where Gudjonsson’s work on suggestibility is also highly pertinent. Heltzel [13] out-
lined the extent of the legal system’s “voracious appetite for information.” Ireland’s
[14] work, which evaluated the quality of reports to the family court, provides
10  The Roles of Forensic Psychiatrists and Psychologists: Professional Experts 159

evidence of the importance of both qualifications as an expert and maintaining

­relevant experience if the quality of reports is to be sustained. She happens to be a
university professor of psychology, so focused on psychology reports. Given the very
personal hostilities toward her that this important work precipitated, it is perhaps
unlikely to be repeated with psychiatrists, so psychiatrists must take these lessons
from psychology for their own work.

10.3 Treating Clinician or Expert Witness?

While forensic psychiatrists may be called to give evidence in court as witnesses

of fact, in which case, their duties are the same as for any other citizen, they are
generally called as expert witnesses. An expert witness is defined by training and/
or experience, with a requirement to assist the court in matters outside the knowl-
edge or experience of the court. There are the same expectations of an expert in
respect of relevant matters of fact relevant to their argument—to report truthfully
and accurately—but the important difference between witnesses merely of fact
and expert witnesses is that the expert is not only allowed to express opinions but
expected to do so. An obvious concern that follows from this is that opinion is
susceptible to conscious and unconscious biases and that a professional clinician
who is treating the person for whom she/he is providing the report may have a
quality of relationship with that person that renders bias inevitable. The next com-
mon assumption is that the bias will necessarily favor the individual; this is not
necessarily the case. Any lengthy relationship between clinician and patient may
lead to negative countertransferences as well as positive regard. Some authors,
such as Strasburger et al. [15], have argued that the processes of psychotherapy
and expert forensic mental health evaluation for the courts are fundamentally
incompatible, and create an irreconcilable role conflict such that combining the
tasks should be avoided whenever possible. Others (e.g., [13]) have argued to the
contrary that there is no justifiable reason why a competent psychologist (or psy-
chiatrist) cannot and should not conduct an objective and appropriate evaluation
of a patient seeking clinical services as a basis for the treatment. In common law
countries, the concern may be less about whether the expert is also treating the
defendant or plaintiff and more about who has commissioned the report. The
General Medical Council (GMC)—the UK’s professional body for all
doctors—warns:
"You have a duty to act independently and must not be influenced by the party
who retains you" (GMC 2008) [16].
In the UK, a distinction is sometimes made between an expert witness and a
professional witness, the latter, by definition having had professional clinical
involvement with one or more of the parties involved in the case. Full transparency
about the level of training and/or experience that qualifies the expert witness to take
that role and about the nature and extent of any relationships pertinent to the case is
seen as the most crucial issue. An important problem is that there are few empirical
data on which to offer any guidance in this area.
160 T. Pham and P. Taylor

Ghent group members came together to debate the issue, and this work was
reported and supplemented by a systematic literature review and a survey of foren-
sic psychiatric representatives from each EU jurisdiction [17]. Almost all published
literature proved to be polemical and, thus, itself biased. The one directly relevant
empirical paper showed good agreement on diagnosis between treating clinicians
and independent experts, except in the case of the rarely diagnosed (in this context)
anxiety disorders or the attribution of psychosis to substance misuse (kappa 0.3—
significant but weak) [18]. The European expert survey highlighted differences in
practice between countries, so the conclusion was:
On current evidence, either separation or combination of clinical and expert roles
in a particular case may be acceptable insofar as there are national legal or profes-
sional guidelines on this issue, anyone practicing in that country must follow them
and may safely do so, regardless of practice in their native country. The most impor-
tant ethical issue lies in clarity for all parties on the nature and extent of roles in the
case ([17], p. 271).

10.3.1 Some Notes on the Belgian Legal System

The Belgian legal system is inquisitorial. For further description of the inquisitorial
system (and the adversarial system), see the chapter on Adversarial versus inquisito-
rial legal systems. This section will address the issue when a judge examining the
case relies on a single expert clinical witness for guidance on the likely role of
mental disorder in the offense and on clinical needs. There is no official list of
experts in Belgium nor nationally accepted guidance on the style and content of
expert reports. A project to devise and implement a mandatory form for them is,
however, underway jointly between the Ministries of Justice and Health. The prin-
ciple of separation between clinician and expert is at one end of a continuum, with
“expert evaluation” and “treating” clinical teams in prison. The psychiatrist, sur-
rounded by several psychologists, working in evaluation teams, is asked to assess
personality, cognitive, and risk characteristics. All prison psychologists have a clini-
cal background. Some have a specific forensic psychology background organized
by several universities only, not all of them. Once engaged by prison authorities, all
psychologists follow further specific training (e.g., dynamic risk assessment evalu-
ations) co-organized by prison authorities. In the beginning of the 1980s, there were
hardly any psychologists in Belgian prisons; today, there are 166 for a prison popu-
lation of around 10,600. Since 2014, the average number of new receptions into
prison annually has been just in excess of 400. The main tasks of these psycholo-
gists are to inform courts about individuals appearing before them, thus assisting the
court to make sentencing decisions and, later, to provide reports for the prison
authorities to help make release decisions. These clinicians also oversee interven-
tions and rehabilitation programs for offenders while they remain in prison and have
a so-called pre-therapeutic role. These psychologists prepare offenders for psycho-
therapy or rehabilitation and supervision in the community. However, there is no
specific structure treatment nor transition programs in Belgian prisons.
10  The Roles of Forensic Psychiatrists and Psychologists: Professional Experts 161

Belgium differs from many European countries in that most people found not
guilty by reason of insanity—called “internees”—are held in prison while they are
supposed to be treated in secure hospitals.
Since 1930, Belgian government approved a law called “social defense” in order
to “protect society against criminal behavior.” Since then, “internees” who are
severe mentally disturbed people, who have committed criminal acts, never get pun-
ished for their criminal acts but are criminally insane and in need of psychiatric care
to prevent them from committing any further crimes. This law has long been the
landmark to organize forensic psychiatric care in Belgium. However, after a number
of cases heard before the European Court of Human Rights [19, 20], two new secure
hospitals opened recently. For those prisons in Belgium which have a designated
psychiatric unit, traditional multidisciplinary clinical teams treat offenders, most of
whom committed their offenses while mentally ill and are internees. These profes-
sionals are involved in therapy and rehabilitation efforts and no social or clinical
information passes between evaluation and therapy teams. This situation, designed
to abolish the dual role conflict, has created some frustration between “evaluation”
and “treatment” professionals and prisoner-patients alike. Indeed, “treatment” clini-
cians complain that assessments have to be repeated needlessly, while “evaluation”
professionals complain about inability to access information on progress which
would be relevant to release decisions. Inside the forensic “social defense” system,
there is no strict separation between evaluation and therapy. From the beginning and
until their definitive release, every 6  months, such people are examined before a
court which considers evidence of mental state change and readiness for release into
society. Although some [21] recommend a strict separation between the evaluation
and treatment teams here too, the system rather supports the bringing together of
evaluation and therapy efforts to maximize benefits for offenders and public alike.

Conclusions
When assessing or treating offenders who have mental disorders, lead clinicians
often find themselves combining clinical and legal roles. Concerns about doing
so seem to crystallize out most prominently in respect of giving evidence in court
or to legal bodies—so much so that some countries proscribe the dual role.
Experts are the only witnesses called to give evidence in a court of law who are
entitled to offer opinions. This privilege should not be blindly extended to guid-
ance on giving such evidence. It is possible to apply rigorous research to deter-
mining best approaches, given knowledge of the concerns which attend the
potential complexities of the role, but difficult, not least because ethics commit-
tees still struggle to provide the necessary range of expertise to consider research
proposals such a field [22]. Reasonable concerns have been cited in respect of, in
effect, exceptional potential for offering biased opinion if the person providing
the expert report is also the treating clinician. Less often expressed, but no less a
concern, is that material which should perhaps properly remain confidential to
the clinical relationship cannot it the treating clinician takes on expert roles.
Research could identify the nature and extent of such biases, if any, and the
nature and extent of harm, if any—to offender-patient or the wider public—when
162 T. Pham and P. Taylor

the treating clinician draws on all information to write a report. The fact that
­different jurisdictions do operate different approaches to this dilemma suggests
that there is no absolutely correct approach, which in turn should reassure ethics
committees that there would be nothing unethical in a research comparison of the
different approaches.

Take-Home Messages
• Most clinicians will at some point in their career find themselves acting in
several roles in relation to a patient, but tensions in this fact are particularly
likely to arise for those working between health and criminal justice
systems.
• Professional bodies are increasingly providing guidance on how to manage
such competition, and clinicians should always follow their professional
code and guidance as far as possible, consulting with other clinicians in the
field and/or legal advisors if there is any risk of breach.
• There is, however, almost no evidence base for many aspects of such
guidance.
• This position could be changed, with interest from and determination on
the part of the research community.

Acknowledgment  Thierry Pham’s contribution was made possible thanks to the financial support
of the Ministère de la Région Wallonne, “Sante ́et Affaires Sociales et Egalité des chances” to the
CRDS.

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review of comparative research. Psychol Bull. 1991;109(3):355–70.
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Forensic Psychotherapy in Forensic
Mental Health 11
Frans Koenraadt, Gill McGauley ✠, and Jochem Willemsen

11.1 Introduction

In this chapter, we pay attention to the implications of speech and language in the
forensic psychotherapeutic talking cure (§2). Especially in forensic mental health,
the role of the committed crime is of central importance (§3). The institutional
embeddedness of treatment in forensic mental health is discussed in §4 based on the
experiences in the Netherlands. The rich historical development of this professional
super specialism in the United Kingdom is outlined in §5. Its contribution to research
is reflected in §6 and to teaching and training in §7. We conclude this chapter with
attention for the international forum of forensic psychotherapy in §8.

11.2 The Role of Speech in Forensic Psychotherapy

Forensic psychotherapy is a talking cure. We ask our patients to talk about their
offence, about their lives and about very intimate aspects of those lives, such as their
romantic relations and sexuality. Moreover, we ask them to talk truthfully and
frankly about these topics, frequently in the presence of other patients. This is a not
an easy task. In addition, it is often assumed that offenders are not particularly good

✠ 
Deceased
G. McGauley
F. Koenraadt (*)
Utrecht University, Utrecht, The Netherlands
Forensic Psychiatric Hospital, Assen, The Netherlands
Netherlands Institute for Forensic Psychiatry and Psychology, Utrecht, The Netherlands
e-mail: f.koenraadt@uu.nl
J. Willemsen
University of Essex, Colchester, England

© Springer International Publishing AG, part of Springer Nature 2018 165

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_11
166 F. Koenraadt et al.

at this task because they have the tendency to minimalise their offence, to misrepre-
sent the facts and to exaggerate the role of the victim [1, 2]. Such minimalising and
legitimising is known as cognitive distortion and is used by offenders to waive their
responsibility. The idea that ‘Criminals do not think like law-abiding prosocial peo-
ple’ [3, p. 2] is taken as a fundamental idea in some types of treatment programmes
for offenders. But how can we provide psychotherapy if we assume that the patient
is not up for the task? How can we listen to the patient who we assume is distorting
the truth? This will require us to question the role of speech in forensic psycho-
therapy. Let us start with an anecdote.

A man goes to a forensic psychiatric institution for an admission interview with the psychia-
trist. He has prepared for this interview very well by reading through the information leaflet
and checking the website in order to know as much as possible about how the institution func-
tions. He is really motivated to start treatment. What scares him though is the fact that he will
have to talk about his sexual offence to a group of patients. In order to make a good impres-
sion, he talks very honestly during the assessment interview; he talks about the offence and
about his sexual attraction to children. The psychiatrist takes notes. When the man stops
talking, the psychiatrist raises his head and says: ‘So you deny your problem’. The man is
astonished and asks the psychiatrist how he reaches that conclusion. ‘You do not use the word
paedophile to describe yourself, so you deny your problem’. The man responds that he is not
a paedophile because that word literally means friend of children, and his deeds have nothing
to do with friendship for children. The man is refused for the treatment programme.

In our interpretation of this anecdote, the man and the psychiatrist reached an
impasse because of a misunderstanding arising from their very different way of
using words. The psychiatrist seems to have a set perspective and pattern of expec-
tations about what he wants to hear from the patient. He seems to assume that ‘pae-
dophile’ is the only correct way of describing the man and his crime. The sexual
offender, on the other hand, seems to be investigating the meaning of words, delib-
erating which are best to describe himself and his deeds. The latter way of handling
language is known in psychotherapeutic practice: an aspect of psychotherapy is
about finding the words to describe yourself, your problems and others and con-
stantly deliberating whether these words are both correct and specific.
The psychologist Jerome Bruner referred to this use of language as the narrative
modus [4, 5]. The narrative modus refers to our use of language as a means of for-
mulating the connections between events over time and trying to establish a sense
of temporal continuity and coherence in the subjective experience; it relates to giv-
ing meaning to experiences through storytelling. Those stories are about ‘human or
humanlike intention and action and the vicissitudes and consequences that mark
their course’ [4, p. 13]. Stories represent what people want and how they want to
reach this. Through narratives, we try to organise the complex and often ambiguous
world of human intentions and actions in a meaningful structure.
In forensic psychotherapy, patients use a similar narrative modus. They talk
about their experience in the present and past and try to give meaning to the events.
A narrative is an act of interpretation because it provides an explanation of what
happened and why it happened. In the process, individual experiences and circum-
stances are compared with broader social, cultural and moral frameworks of mean-
ing. In the case of a person talking about something he or she did wrong—an
11  Forensic Psychotherapy in Forensic Mental Health 167

offence—the story emerges as a result of the ability to engage in a moral negotiation

about what happened [6, p. 291], why it happened and what that means.
From this perspective, it is delicate to say that the tendency in offenders to mini-
malise and legitimise their crime reflects their personality; such ‘cognitive distor-
tions’ need to be conceptualised as something people do rather than something
people have as a psychological feature [7]. The use of cognitive distortions is no
evidence for the fact that offenders think differently in comparison to prosocial
people, but it illustrates that the person is trying to give meaning to what he did and
who he is. The psychological literature on cognitive distortions establishes that tak-
ing full responsibility for every personal failure is not synonymous with healthy
functioning—indeed such behaviour would be rather unusual and possibly a sign of
mental illness [8]. Social psychology has demonstrated that people have the ten-
dency to explain problematic behaviour in terms of external, uncontrollable and
non-intentional causes [8]. To a certain degree, such explanations are adaptive
because they give more resilience and self-confidence to people.
However, this does not mean that the speech of offenders should be taken at
face value and that minimising and legitimising should be accepted. We would
argue that the aim of forensic psychotherapy is to stimulate the narrative search
for the meaning of the criminal offence, the meaning of the motives, the meaning
of the aggression or sexuality implied in that act, the meaning of events from the
past (traumatic and others) as precursors for the act and the meaning of the juridi-
cal label that is bestowed upon them. A particular challenge in this process is the
fact that many of the topics that are subject of meaning-making in forensic psy-
chotherapy are so difficult to formulate. As the crime often contains unconscious
as well as conscious elements, the offender often has difficulty understanding the
reasons that lie behind his or her crime, let alone the capacity to explain these to
others. Consequently many offenders reach a point where their motivation to
commit the offence is obscure to themselves. This is the moment when they will
resort to psychological defensive manoeuvres such as rationalisation, denial, min-
imisation and blaming. The forensic psychotherapist, who is aware of the role of
speech in therapy, will strive to provide the patient with a safe context to think and
speak, will keep his own mind open to hear the patient and will help the patient to
be curious about his own mind, motives and actions to a degree that the patient
can tolerate [9].

11.3 Crime: Both a Meaningful and Meaningless Act

Within forensic psychotherapy, we assume that it is effective to talk to our patients

about the crime they committed. This is because offences are not purely an expres-
sion of certain personality traits and situational determinants. Crimes and patterns
of criminal behaviour have psychic determinants that are rooted within the uncon-
scious mind. Crimes can be considered symptoms of unconscious conflicts, and
their meaning can be unravelled and understood within treatment. These ideas stem
from psychoanalytic theory and also apply to the treatment of non-forensic patients.
Freud [10] pointed out that patients often find it painful to talk about the origin of
168 F. Koenraadt et al.

their symptom; rather they will act the symptom out. For example, a patient might
not remember that he was defiant towards his parents’ authority; instead, he acts
defiantly to authority in his workplace. Freud viewed symptoms or actions as mne-
mic symbols which reproduced, in a repetitive way and in a more or less disguised
form, elements of past conflicts in the present [11]. In Freud’s words “A thing which
has not been understood inevitably reappears; like an unlaid ghost, it cannot rest
until the mystery has been solved and the spell broken” [12]. So rather than thinking
that a patient’s attitude is the expression of his personality, Freud saw it as the rep-
etition of earlier elements in the patient’s life. However, Blumenthal (ibid) notes
that it is a characteristic of forensic work that what is forgotten appears, not in
ghostly form but in action. The following anonymised vignette is provided as
illustration.

A young man came to treatment for the possession of child pornography. After a number of
misfortunes in his life, he had become depressed and had become heavily engaged in a
clandestine online community of people who share pornographic imagery. What stood out
of this period of illegal activities is one message he had send to all members in this com-
munity: ‘Which daddy wants to hand over his child to me, I’ll treat her very well?’ Shortly
after, he was arrested. During treatment, he talked about his childhood and how his parents
hadn’t been able to take care of him. He had resided in foster care for a number of years. It
became evident that questions about why his parents had failed to take care of him and why
they had handed him over to a foster family still troubled him unconsciously. Considering
his life in retrospect, he came to see that his period of depression had brought these issues
back into his mind. His crime could then be understood as a repetition, through acting out,
of conflicts around this painful childhood experience. The question ‘Which daddy wants to
hand over his child…?’ could be reformulated as ‘What kind of daddy hands over his child
to foster care?’

So the crime had an unconscious meaning if we consider it from the perspective

of his earlier life experiences and their legacy in the patient’s internal world. In this
case, it enabled us to orient the treatment to helping the patient work through the
questions and conflicts in relation to his parents and parenthood that were troubling
him. The unconscious meaning of the crime is highly specific to the individual and
can only be understood within the broader context of the patient’s life.
Although a crime has an unconscious meaning, there is always a meaningless
aspect to it as well; meaning and lack of meaning are the two sides of a coin. The
meaningless side of a crime relates to the sexual or aggressive drive behind the act.
The primary forces of sex and aggression are buried so deep in our psyche that they
are (partially) alien to ourselves. We might gain some understanding of these pri-
mary forces through psychoanalysis, in particular through the analysis of our
dreams, but, for the most part, they are repressed from conscious awareness. These
ideas originate in Freud’s work described in his paper on ‘Instincts and their vicis-
situdes’ [13]. Freud posits that the sexual and aggressive drives are at the frontier
between the somatic and the mental. In other words, as the drives are rooted within
the body, they cannot be fully grasped psychically. The individual can develop a
partial understanding of his sexual and aggressive drives, but there will always be a
part that he cannot put into words.
11  Forensic Psychotherapy in Forensic Mental Health 169

Studies on the antecedents of crime have shown that committing an offence is

preceded by certain negative life events [14, 15]. On the offence trajectory, there is
a period where the sexual and aggressive drives start to manifest themselves in sexu-
alised or aggressive feelings, thoughts, rumination, phantasies and behaviours. This
period varies in length, but it is at the moment of the crime that these drives manifest
themselves most clearly. This means that the offender is confronted with a part of
himself that he neither knew nor probably wants to know. Since sexual and aggres-
sive forces are related to the motives of the crime, it is particularly difficult for
offenders to fully understand and disclose the motives underlying their offence [16].
That’s the reason why very often, offenders produce unsatisfactory or even contra-
dictory explanations about their offence: everything they say is in some respect
beside the point. They lack the words to express what it’s really about.

11.4 F
 orensic Psychotherapy Embedded in Forensic Mental
Health Institutions

In the Netherlands, influenced by pioneers such as the criminal lawyer Willem

Pompe, the criminologist Ger Kempe and especially the psychiatrist and lawyer
Pieter Baan, in the second half of the last century as a reaction to and an alternative
to strong custodial-based TBS hospitals (hospitals for treatment of mentally ill
offenders under a special criminal law sanction), an emphasis on a more
psychotherapeutic-­oriented method came in vogue in Dutch forensic psychiatry
[17]. The Utrecht Dr. H. van der Hoeven hospital was designed as a secure and con-
trolled therapeutic environment. A few key elements were crucial in the therapeutic
approach. Pieter Baan was strongly influenced by the ideas of Maxwell Jones who
pioneered the use of small therapeutic group in his treatment model. The therapeutic
community approach grew from dissatisfaction with both the strict medical approach
to mental health problems and with the hierarchy of the organisation. Maxwell
Jones prescribed a number of conditions that the community must meet in order to
work as a therapeutic community, a reciprocal communication at all levels of the
organisation, shared leadership and decision-making at all levels and consensus in
decision-making and social learning through social interaction in the here and now.
In addition to the Dr. H. van der Hoeven hospital, most other forensic hospitals
embraced the therapeutic community model adopting key elements of this approach.
The group is a central part of treatment; on a daily basis, the patient shares many of
the experiences with the staff and fellow patients. The challenge for therapists in
this treatment setting is to confront the detainees with external reality and the
demands of everyday life. The hospital is considered as a protected and protective
environment where residents can practice and experiment with new behaviour [18],
a special and safe environment for re-education.
Contact between patients and their families is an important tool in the therapeutic
approach, along with opportunities for work, education, sport, education and leisure
activities. In recent decades, the original model of the therapeutic community has
given way to a grafted environmental therapy, which has incorporated some
170 F. Koenraadt et al.

principles of cognitive and behavioural therapy [19, 20]. The Dr. H. van der Hoeven
Hospital is now recognised as the forensic psychiatric centre where the most far-
reaching group therapeutic approach has been implemented. In his contribution,
‘The forensic psychiatric hospital as a therapeutic tool’ Blankstein [18] concisely
describes the position of the hospital. ‘But a hospital is more than the sum of a num-
ber of treatment moments. There is a specific emotional climate, which is reflected
in the attitude of all practitioners and other hospital staff. This climate is also fuelled
by formal and informal rules and codes of conduct, which both have impact on the
staff contacts with the residents as well as to the handling and methods of collabora-
tion between staff members. This climate pervades all treatment contacts and often
transcends the power and influence of a particular treatment sector or practitioner.
This emotional climate, with its translation into rules and codes is supportive for
certain approaches, but can neutralise or even fundamentally disempower other
approaches’.
Van Marle [21] in his dissertation entitled Een gesloten system (‘A closed sys-
tem’), describing a psychoanalytical frame of reference for the care and treatment
of TBS patients, emphasises the importance of the therapeutic milieu as a holding
and containing environment. In this perspective, the psychiatric ward is perceived as
a substitute for the family. Due to the many restrictions and constraints necessary in
a forensic institution, patients’ transference feelings come to the fore strongly and
are often directed at therapists or socio-therapeutic workers. Also the concept of the
hospital as a substitute mother has a meaning that goes far beyond the mere idea of
a building where patients are being treated. Van Marle’s description is based on the
Dr. S. van Mesdag Hospital in Groningen, a forensic psychiatric hospital for treat-
ment of TBS patients. Although its psychodynamic roots can still be traced in daily
practice in the hospital, nowadays cognitive and behavioural approaches are
dominant.
The TBS measure for treatment of mentally ill offenders requires that, within the
secure environment of the hospital, the detainee should be able to ‘experiment’ with
other behaviour. Changing one’s own behaviour is difficult for the offender and is
often met with both conscious and unconscious resistance; however, effecting
change is even more of a challenge when it is required by the criminal court.
Treatment as part of the TBS measure starts in the closed protected and protecting
environment of the hospital. Inherent to the treatment process in the TBS system is
that the treatment team gradually facilitate increasing amounts of freedom and leave
for the offender under strict security safeguards and risk management protocols.
Within the TBS system, security and treatment are closely interlinked so that suc-
cessfully increasing the patient’s freedom of movement is seen as marker of treat-
ment progress but only occurs if clinically justified and requires robust and vigilant
risk management [22, p. 179].
There is often a tension between restricting a patient’s movement and the patient’s
wish for freedom. In recent years, partly because of public discussions following
several serious incidents, an emphasis on security as oppose to treatment has perme-
ated the patient management within the TBS hospital. This shift has been reinforced
by the development of more risk-adverse societal attitudes. Some have argued that
11  Forensic Psychotherapy in Forensic Mental Health 171

this pendulum swing towards security has compromised the detainee’s rights. The
incorporation of a mentalisation-based approach into the therapeutic programme of
the forensic psychiatric hospital at Assen [23, 24] has helped enhance acceptance of
the regime and the rules and increases motivation for treatment as shown in recent
research. Within a mentalisation approach, a mentalising stance requires the clini-
cian to prioritise and be curious about the patient’s state of mind, as oppose to his
behaviour, and explore and make explicit differences in perspectives [25]. This
approach is entirely in accordance with the theory of procedural justice. The con-
cept of procedural justice deals with the conditions in which people experience
authority, regardless of the outcome of specific decisions. Important conditions are
that people feel heard, trust the authorities, feel that they are treated with respect and
have the feeling that decisions are made impartially. In the context of the forensic
system, it will mainly depend on the quality of the relationship whether the require-
ments of procedural justice can be met. Good contact between the staff and detain-
ees, where one can communicate with openness and trust to some degree (however,
tricky this can be in a closed institution), has a positive effect on the experienced
safety [26].

11.5 T
 he Historical and Conceptual Roots of Forensic
Psychotherapy in the United Kingdom

In the United Kingdom (UK), the discipline of forensic psychotherapy has devel-
oped mainly within the National Health Service (NHS), as opposed to the Criminal
Justice System, and was pioneered by psychiatrists and forensic psychiatrists, many
of whom were also psychoanalysts and group analysts. Although there were several
pioneers who worked independently in prisons and secure forensic units, the insti-
tutional cradle for the development of the discipline was the Portman Clinic, part of
the Tavistock and Portman NHS Foundation Trust, London. The clinic grew from
the idea of a small group of psychoanalysts who wanted to establish that there was
a better way of dealing with offenders rather than incarcerating them in prison.
Thus, forensic psychotherapy developed from psychoanalysis, psychodynamic psy-
chotherapy and forensic psychiatry and psychology and refers to the application of
psychoanalytic principles and treatment in the service of understanding and manag-
ing mentally disordered offenders, irrespective of whether these individuals are in
secure NHS units, prisons or the community. In other words, forensic psychothera-
pists not only provide treatment but also apply psychodynamic thinking to the com-
plexities and dynamics within staff teams and institutions treating these individuals
[27]. One of the unique selling points of forensic psychotherapy is that central to its
work is a psychoanalytic consideration of the unconscious mind and the internal
world of the patient. This contributes an additional dimension to understanding the
mind, criminal acts and ongoing risk of the offender [11, 28–31].
Forensic patients have highly disordered and fragmented internal worlds. They
rely on primitive unconscious defence mechanisms in an attempt to stabilise their
inner world. Aspects of the patients’ internal world can be projected into staff and
172 F. Koenraadt et al.

evoke reactions in both the staff and the institution that arise either from the uncon-
scious response of staff to the projected aspects of their patients’ internal world or
from mobilisation of the unconscious defence mechanisms of the staff and the insti-
tution to reduce internal anxiety. If left unattended, these processes result in staff
teams becoming ‘split’ and reenacting aspects of the patients’ intrapsychic and
interpersonal situation within the professional network. The therapeutic potential of
the environment is decreased along with the effectiveness of the particular therapeu-
tic task, irrespective of whether this is one of containment, assessment or treatment
[32]. The understanding that forensic psychotherapists can bring to the intrapsychic
function and the interpersonal consequences of such splitting for both their patients
and the systems in which they work can significantly contribute to assessment, treat-
ment and risk management [33]. However, to achieve this, it is crucial that forensic
psychotherapy is a team effort [34] and, as such, embraces inter-professional, inter-
disciplinary and interagency working. The impetus for the further development of
forensic psychotherapy came from two drivers: one creative and the other tragic.
To further multi-professional expertise in forensic psychotherapy and to encour-
age the growth of the discipline beyond psychoanalytic departments and clinics in
the United Kingdom, Dr. Estela Welldon established the first training course in
Forensic Psychotherapy in 1989 which was accredited by the University of London
and run at the Portman Clinic. This was an innovative and highly successful course;
however, it could be argued that health service policymakers and the bastions of
forensic psychiatry did not fully appreciate its worth.
Tragically it took several public enquiries before policymakers and the secure
institutions, which sit at the heart of forensic psychiatry, realised what forensic psy-
chotherapy could offer. In the 1990s, Ashworth Hospital (at Maghull, Merseyside,
UK), one of the four high secure hospitals in the United Kingdom, was the subject
of two public inquiries because of concerns about staff behaviour towards patients.
The first Ashworth Inquiry found evidence that some staff had been physically abu-
sive to some patients [35]. The second found evidence of serious boundary viola-
tions by staff who had either colluded with patients on the hospital’s personality
disorder unit or turned a blind eye to their behaviours such as ‘the misuse of drugs
and alcohol, financial irregularities, possible paedophile activity and the availability
of pornographic material on the Unit’ [36]. As a result of the 1992 enquiry, the first
Consultant Forensic Psychotherapy post, recognised by the Royal College of
Psychiatrists in the United Kingdom, was established at Broadmoor High Secure
Hospital and resulted in the development of a forensic psychotherapy service. The
second enquiry recognised that clinical decision-making lacked the capacity to for-
mulate and understand the patients’ internal world and acted as an impetus for the
Department of Health to fund a small number of training posts in forensic psycho-
therapy, so psychiatric trainees could be trained in both psychoanalytic psycho-
therapy and forensic psychiatry. The rationale was that these dually trained doctors
would be better ‘equipped to enhance multidisciplinary teams awareness of the
often unconscious dynamics arising from patients’ early experiences and to con-
sider the reverberating emotional impacts which determined relationships between
patients and professionals on the wards and in other mental health settings’ [37].
11  Forensic Psychotherapy in Forensic Mental Health 173

In the United Kingdom, forensic psychotherapy has developed mainly within the
shelter of the NHS; its growth in prisons has been slower. Early models for the
application of forensic psychotherapy in the male prison estate included the ‘visit-
ing psychotherapist’, where the psychotherapist is added on to a traditional system
[38], or the ‘whole institution approach” used in prison-based therapeutic commu-
nities [39] with male prisoners at HMP Grendon. This model is geared towards
providing a specific and therefore narrower treatment approach for offenders with a
diagnosis of personality disorder. In the Corston Report [40], Baroness Corston
argued that equal outcomes for women required different approaches; arguably this
policy initiative allowed forensic psychotherapy thinking and practice to cross over
into women’s prisons. The Report paved the way for community mental health
teams (CMHTs) to be based in prisons, where the prison is the community, and
some of these teams now include forensic psychotherapists.
A recent policy initiative, the Offender Personality Disorder (OPD) pathway is a
joint National Offender Management Service (NOMS) and NHS strategy for vio-
lent male and female offenders with personality disorder and has driven the devel-
opment of more joined-up services for this offender group across the Criminal
Justice System, the NHS and into the community [41]. The OPD supports a variety
of treatment interventions including cognitively based offending behaviour pro-
grammes; however, the initiative has also drawn heavily on forensic psychotherapy
principles, psychodynamic theory, attachment theory and its developmental legacy,
the capacity to mentalise [42], to shape its treatment interventions. As part of this,
initiative psychologically informed planned environments (PIPEs) have been set up
in prisons and in the community to provide personality-disordered offenders with
progression support prior to or post treatment. PIPEs provide mentalising environ-
ments where the affective and cognitive meanings behind actions are thought about
in relation to the self and others and where offenders can think about their antisocial
identities and choices. Although forensic psychotherapy is in its infancy within the
prison system, it is encouraging that in the UK prisons see the provision of psycho-
logical therapies as a legitimate part of their remit.
As a super specialism, forensic psychotherapy always faces a particular problem,
namely, how to achieve an impact on and develop clinical practice across a wide and
varied forensic mental health system with a relatively small number of practitio-
ners—this challenge has been addressed in the United Kingdom by a variety of
approaches outlined below.

11.6 T
 herapy at the Edge: Two Initiatives for Mentally Ill
Offenders in Belgium

In the Netherlands, the United Kingdom and Belgium, community care policies
have been implemented in order to move mental health care from institutions to
local treatment services within the patients’ social environment. Existing places in
residential facilities are reduced, and patients are stimulated to progress more
quickly towards return in the community. A number of people with complex and
174 F. Koenraadt et al.

chronic mental health issues, who traditionally would be in long-term residential

care, are struggling to find their place in this changing world. Especially in cases
where the psychiatric difficulties go together with issues of aggression or drug
abuse, patient might be considered ‘therapy resistant.’ In Belgium, several local
initiatives are established for these patients, of which we will mention two. Within
the psychiatric ward of the prison of Antwerp, mentally ill detainees are invited to
participate in a number of therapeutic activities on a voluntary basis [43]. Many of
these detainees have complex and long-standing psychiatric histories, including
psychotic symptoms, personality disorders and substance abuse. The therapeutic
activities consist in a range of creative activities, sport, psychotherapy and open
group activities (listening to music, discussing the news, etc.) that are offered on a
voluntary basis. There is also a project involving prison radio (radio made by and
for prisoners). The high amount of routine and structure, and the low amount of
pressure on the detainees, helps to create a safe environment in which people who
would otherwise withdraw from social activities start to engage with the group and
the therapists. In Ghent, the project ‘Villa Voortman’ provides a meeting place for
people with a dual diagnosis of substance abuse and psychosis [44]. This meeting
place is situated in an ordinary house in the city, which is open during the day.
Creative activities are organised during the day, and people are free to come in and
spend their day in the house.
Although very different in setup, both initiatives share some basic therapeutic
principles. On the basis of the Lacanian theory on psychosis, it is assumed that psy-
chotic subjects tend to engage in fusional and aggression-laden relations. As a con-
sequence, the therapeutic professional may come to be perceived by the psychotic
subject as someone who takes over or threatens their personality. The risk is espe-
cially high when the professional addresses the psychotic directly, for instance, with
a therapeutic demand. In order to avoid the development of a psychotic transfer-
ence, the abovementioned initiatives put no pressure on the patients to engage in the
treatment. A range of activities is offered, and patients are invited to participate.
Those who don’t participate are not excluded or forgotten but ‘kept in mind’ during
the staff discussions. The therapists are available for the patients, either within the
setting of a consultation room or just for a chat in the corridor. The idea is that these
little, casual interactions are as therapeutic as the interactions within a scheduled
therapy session. Patients are also able to work out their own treatment programme.
In accordance with the therapeutic community approach, much value is given to the
group. The group of patients are given a degree of autonomy to take decisions in
relation to practical issues that arise within the institution. The aim is to organise
authority horizontally as much as possible, rather than vertically.

11.7 Impact on Practice: Through Research and Scholarship

As clinicians and academics, forensic psychotherapists have greatly extended psy-

choanalytic thinking and scholarship in a wide range of areas, too wide to do them
all justice here. However, there are certain domains where forensic psychotherapy
has made particular contributions extending psychoanalytic theory and thinking and
11  Forensic Psychotherapy in Forensic Mental Health 175

applying these ideas to treating patients in the contemporary complex systems

where our patients are contained and managed. Forensic psychotherapy is inti-
mately concerned with triangulated and oscillating dynamics between the patient,
the psychotherapist and society, often represented by the Criminal Justice System as
well as triangulations commonly found when working with forensic patients when
they adopt roles such as the victim the perpetrator and the bystander [45].
Ubiquitous to our clinical work are the acts of violence that our patients perpe-
trate, and a fundamental principle of forensic psychotherapy, as noted earlier, is that
the offence has a meaning to the offender, a meaning that often contains uncon-
scious elements [28], and the actuality of the individual’s offence needs to be kept
in mind within the therapeutic work [11, 46]. The forensic psychotherapist is well
placed to anticipate and articulate links between the internal and external worlds of
the individual and can therefore make a critical contribution to the understanding of
violence, including seemingly random violence, the containment of violence and
the management of risk [29, 31, 47–50].
Clinicians and authors have also greatly extended psychoanalytic thinking pro-
viding a model of female perversion [27, 51] and the psychoanalytic mechanisms
underlying women’s crimes of violence towards their partners or their children
[52, 53].
Forensic psychotherapy can provide a way of thinking that helps staff understand
the less conscious communications of their patients and supports staff in their work
with highly disturbed individuals and helps us manage the anxieties and internal
disturbance such work engenders [54–56]. Supervision and the provision of reflec-
tive space can shed light on how patients’ psychopathologies unconsciously influ-
ence the system that contains them, whether this is at the interpersonal level or
within the institution as a whole.
Two of the challenges facing forensic psychotherapy are, firstly, to develop reli-
able clinical tools that help teams have a systematic approach to examining and
formulating the patient’s difficulties from a psychodynamic perspective and, sec-
ondly, to evidence what we do through qualitative and quantitative research meth-
odologies. With respect to the first challenge, a group of UK forensic psychotherapists
have developed the Interpersonal Dynamics (ID) Consultation model [57]. Based
on the work of the Operationalized Psychodynamic Diagnostics (OPD) Task Force
[58, 59], which has been widely used in Germany, the ID Consultation provides
clinicians with a systematic way of mapping and formulating the patient’s core rela-
tionship patterns and helps the multidisciplinary team develop a shared understand-
ing of patterns of dysfunctional relating. The ID draws on psychoanalytic concepts
of transference-countertransference which become enacted between patients and
staff members involved in their treatment. Such a shared understanding offers the
possibility of improving unit dynamics, treatment concordance, offering protection
against boundary violations and managing risk [60].
Core to the work of forensic psychotherapists, and indeed to forensic mental
health professionals, is the examination of the index offence; however, there has
been no systematic way of examining and formulating the patient’s offence narra-
tive or investigating whether the way in which a patient represented his offence was
predictive of progress. Using methodologies arising from the field of attachment
176 F. Koenraadt et al.

research and examining the patients’ capacity to mentalise especially around their
offence, the Index Offence Representation Scales were developed [61] which were
shown to be predictive of both subsequent violent behaviour and treatment
engagement.
One of the major treatment advances of the last two decades has been the advent
of new theoretically driven psychological treatments for individuals with a diagno-
sis of personality disorder especially borderline personality disorder. However, a
sense of therapeutic pessimism has remained in the hearts and minds of clinicians
in relation to treating those patients with a diagnosis of antisocial personality disor-
der (ASPD). Of these treatments, mentalisation-based treatment (MBT) has been of
particular interest to forensic psychotherapists as there is a growing evidence base
for its use in the treatment of some individuals with ASPD [62, 63]. A large-scale,
national multisite RCT comparing MBT with other services offered by community-­
based probation is now underway in the UK to evaluate MBT’s effectiveness in
reducing aggression and offending behaviour and improving health and well-being
in comparison to ‘probation as usual’.

11.8 Impact on Practice: Through Training

The legacy of the Ashworth and other enquiries led to a small number of national
training posts being established for medical trainees in forensic psychotherapy;
however, two problems remained. First, with funding pressures on NHS trusts and
commissioners, it was clear that this small number of trainees would never increase
to reach a critical mass of skilled clinicians who could have a wide impact within
forensic services. Second, there was no established career pathway or mechanism of
training for ‘would-be’ forensic psychotherapists who were not medically qualified.
Pathways have now been developed which lead to both academic and professional
registration through the British Psychoanalytic Council. Completion of the Forensic
Psychodynamic Psychotherapy course at the Portman Clinic, the iteration of the
original Portman Course established by Estela Welldon, is accredited by the British
Psychoanalytic Council (BPC) and equips its graduands to work as independent
practitioners.
The 2-year MSc in “Psychotherapeutic Approaches in Mental Health” is a col-
laboration between the Forensic Psychotherapy Department at West London Mental
Health NHS Trust, the Department of Psychotherapy in the Belfast Health and
Social Care Trust in Northern Ireland and New Buckinghamshire University in the
United Kingdom. Establishing this training in Belfast provides a model of how to
develop a multi-professional forensic psychotherapy training in a periphery of the
United Kingdom in which there is a relatively modest provision of psychoanalyti-
cally trained clinicians. MSc graduates are eligible to apply for British Psychoanalytic
Council (BPC) registration as psychodynamic practitioners in mental health (gen-
eral or forensic). A further clinical training of 2 years leads to BPC registration, as
a forensic psychodynamic therapist, with full membership of the forensic psycho-
therapy society. All of these courses offer training for multidisciplinary
11  Forensic Psychotherapy in Forensic Mental Health 177

professionals working across a range of forensic settings and community settings

and a range of different organisations such as the NHS, as well as for individuals
working in the NHS, the Criminal Justice System and the third sector organisations
such as charities and voluntary organisations.

11.9 Impact on Practice: Through Communities of Practice

As a relatively small group of professionals, the International Association of

Forensic Psychotherapy (IAFP) acts as an umbrella to link and bring together prac-
titioners across the world. The IAFP has strong European and UK roots. It was
formed in 1991 in Leuven, Belgium, by Estela Welldon and colleagues who in the
field of law and mental health wanted a forum to think about the difficulties they
encountered in psychotherapeutically working with forensic mental patients. Today,
the IAFP encourages and supports the sharing of practice, research and new devel-
opments in forensic psychotherapy and through annual international conferences
and national meetings enables professionals in the field to present their clinical
work and extend their skills.

Take-Home Messages
• Crime is both an unconsciously meaningful and meaningless act for the
criminal: its meaning can be deciphered by considering the act in the con-
text of a life story, and its meaningless aspect can be situated in the aggres-
sive or sexual drive that motivates the crime.
• An offender’s use of rationalisation, denial, minimisation and blaming
does not reflect an antisocial personality; they are an offender’s attempt to
engage in a moral negotiation about what happened and provide valuable
input to work with in forensic psychotherapy.
• The institution where forensic psychotherapy takes place presents an
important environment that has a crucial impact on the therapeutic and
work climate for all those involved.

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 Part IV
Teaching and Training
Teaching Forensic Psychiatry
and Psychology in Europe 12
Sheila Howitt and Lindsay Thomson

12.1 Introduction

Working within the fields of forensic psychiatry and psychology requires an effec-
tive combination of knowledge, clinical skills and professionalism which must be
developed through academic learning and clinical experience. Whilst a general
expertise is developed through core psychiatry and clinical psychology training,
those working in forensic services must have detailed knowledge of risk assessment
and management, criminal justice services and the role of a medicolegal expert.
Furthermore, experience must be gained in a range of clinical environments includ-
ing secure psychiatric facilities, prisons and outpatient settings.
Most clinicians working as either forensic psychiatrists or psychologists will
have a role in the teaching and supervision of trainees and may also be involved in
undergraduate teaching.
They may also have a role as teacher in the courts or legal systems [1]. In this
chapter, we aim to discuss the teaching of forensic psychiatry and psychology
across Europe and to outline the range of teaching methods that may be employed.
Specialist training in forensic psychiatry and psychology will be discussed in detail
in the next chapter.
Additional challenges that the forensic practitioner must be prepared and
equipped for arise from the paradoxical political and public misconceptions that, on
one hand, those with mental disorder pose a risk to others and should be infinitely
detained, and conversely that due to their offending behaviour they are less deserv-
ing or in need of care or resources. This may be amplified in developing countries

S. Howitt
The State Hospital, Lanark, UK
e-mail: Sheila.Howitt@nhs.net
L. Thomson (*)
Division of Psychiatry, University of Edinburgh, Kennedy Tower, Edinburgh, UK
e-mail: L.D.G.Thomson@ed.ac.uk

© Springer International Publishing AG, part of Springer Nature 2018 183

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_12
184 S. Howitt and L. Thomson

where there may be a more limited understanding of mental disorder and limited
resource. It is our belief that those working in the field of forensic mental health
have a role, not only as teachers but to act as ambassadors and to reduce mental
health stigma.

12.2 E
 uropean Routes to Practising in the Professions
of Forensic Psychiatry and Forensic Psychology

The pathways to becoming a practitioner working in the fields of forensic psychia-

try and psychology vary across Europe, but there are commonalities in the training
and skills required. As specialist training will be discussed in detail in the next
chapter, here we aim to provide an overview of the process to undertaking specialist
training and outline the key components of this training.
Prior to undertaking specialist training in most European countries, forensic
practitioners undertake an undergraduate degree in medicine or psychology.

12.2.1 Psychiatry

Undergraduate medicine curricula include psychiatry, but there are significant vari-
ations in the quantity of teaching and experience of forensic mental health within
this both nationally and internationally. Some institutions, for example, the
University of Edinburgh, include teaching on mentally disordered offenders and the
structure and provision of secure care within its undergraduate curriculum. Some
but not all students have the opportunity to undertake clinical placements in forensic
settings. Following completion of an undergraduate medical degree, psychiatry can
be selected as a career pathway. This will involve clinical training, assessment of
competencies and in some countries postgraduate examinations.
In the UK, psychiatric trainees wishing to receive specialist accreditation in
forensic psychiatry must undertake 3 years of training in forensic psychiatry follow-
ing completion of core psychiatric training. This is overseen by the Royal College
of Psychiatrists who has developed a curriculum and learning outcomes which must
be adhered to and award a European Certificate of Completion of Training (CCT).
Accredited training in forensic psychiatry resulting in a CCT is also available in
Ireland, Germany, Switzerland and Sweden. In other European countries, such as
Denmark, Belgium, Austria, Finland, Norway, The Netherlands and Spain, univer-
sity or official medical bodies run a diploma course in forensic psychiatry and psy-
chology [2].

12.2.2 Psychology

In the UK, after undertaking an undergraduate degree in psychology, those inter-

ested in working within the field of forensic psychology must undertake a post-
graduate degree. It should be noted that there is a clear divide in those that train to
12  Teaching Forensic Psychiatry and Psychology in Europe 185

become clinical psychologists and work in forensic mental health services and those
who train to become forensic psychologists and work mainly with the police or in
custodial settings focussing on criminal profiling and altering offending behaviours.
In Germany, there are three universities with master’s programmes exclusively
focusing on psychology and law. In the Netherlands, there are three accredited aca-
demic master’s programmes in forensic psychology which is delivered by Maastricht
University, the University of Amsterdam and Tilburg University.

12.2.3 Components of Training

As will be discussed in the next chapter, the length and structure of specialist train-
ing vary across Europe; however, there are commonalities in the components and
content of this training. Firstly, specialist training can be conceptualised as compris-
ing both formal teaching and apprenticeship. Formal teaching includes lectures,
courses and problem-based learning and is the main mechanism through which
theoretical knowledge is imparted to trainees. These teaching formats will be dis-
cussed in more detail later in this chapter.
Alongside formal teaching, trainees in forensic psychiatry and clinical psychol-
ogy undertake apprenticeships, that is, clinical placements working under the super-
vision and guidance of experienced practitioners. Here, trainees will develop
expertise in the assessment of treatment of mental disorder, risk assessment and
medicolegal work. Clinical skills are developed in tandem with professional skills,
and trainees receive formal supervision from their mentor. Trainees will also gain
experience in the administration of psychological theories to both individuals and
groups, which is of importance not only for the development of therapeutic skills
but also for the professional skill of maintaining boundaries.
Trainees should receive regular feedback from their supervisor over the course of
a clinical placement with a formal review on completion of the placement. Clinical
and professional competencies should be assessed against a defined curriculum and
supervisor’s reports supplemented by workplace assessments and, in some coun-
tries, professional examinations.

12.3 E
 ducation Beyond Specialist Training for Forensic
Mental Health Clinicians

Accreditation of completion of specialist training in forensic psychology, clinical

psychology or psychiatry does not signify an end to educational requirements.
Clinicians require ongoing training to both maintain and enhance existing knowl-
edge and skills. Evolving research and policy necessitate changes in practice, and
even the most experienced clinicians will require training in legislative changes and
new methods, e.g. a new risk assessment tool.
One of the challenges of training forensic mental health clinicians is that, due to
the level of specialisation, there is a relatively small body of practitioners who may
be spread over a large geographical region. This can make the delivery of training
186 S. Howitt and L. Thomson

and teaching irregular and not cost-effective. One strategy to overcome this is to
make training multidisciplinary and national rather than regional, as exemplified by
the School of Forensic Mental Health in Scotland.
The School of Forensic Mental Health (SoFMH) [3] was established in 2007
coinciding with a time of change within the country with new mental health legisla-
tion, new initiatives and the development and opening of new forensic facilities.
There were major training requirements following these changes, but training in
forensic mental health was uncoordinated and unidisciplinary, and access was sub-
ject to a geographical lotters. SoFMH was developed to meet these needs and is a
virtual school with an administrative centre but delivering training usually on a
multidisciplinary basis across Scotland using a variety of teaching methods. The
school organises a range of multidisciplinary training events, clinical forums and
special interest groups, coordinating research and teaching across the country.
There is a short programme course, postgraduate qualifications such as a master
of science degree in forensic mental health delivered electronically which has four
core online modules, namely:

• Mental disorder and the law and treatment and interventions for mentally disor-
dered offenders
• Problem behaviours
• Risk assessment and risk management
• Evaluating evidence to develop research and inform practice

In addition, SoFMH has an active research programme linking to its educational

remit.
One teaching resource developed by the SoFMH is the ‘New to Forensics’ teach-
ing programme. ‘New to Forensics’ is a learning tool developed between the
National Education for Scotland (NES) and the Forensic Network. It is suitable for
clinical and non-clinical staff and is multidisciplinary and multiagency in approach.
A mentor, who is an experienced forensic mental health worker from within the
multidisciplinary team, supports a student through 15 chapters over a 6-month to
1-year period. It includes patient case scenarios in a variety of settings, from high-­
secure psychiatric care to community. To date, over 1000 individuals have under-
taken the programme.

12.4 European Educational Initiatives

Although specialist training varies across Europe, there are a number of pan-­European
organisations which exist to share and learn from each other’s experience including
the European Association of Psychology and Law (EAPL), the European Federation
of Psychiatric Trainees (EFPT), the European Psychiatric Association and the Ghent
Group. These bodies will be described more fully in the chapter ‘International
Associations’, so here we will focus on their important role in education and training
by organising events, disseminating knowledge and developing guidance.
12  Teaching Forensic Psychiatry and Psychology in Europe 187

12.4.1 The European Association of Psychology and Law (EAPL) [4]

The European Association of Psychology and Law (EAPL) was founded in 1992.
Its aims are as follows:

The promotion and development of research, improvements in legal procedures,

teaching and practice in the field of psychology and law (e.g. legal psychology,
criminological psychology, forensic psychology) within Europe, and the inter-
change of information throughout the world aimed towards an international
cooperation.

They have a publication Psychology, Crime and Law, which is issued eight times
a year, and organise an annual conference. There is an active student association,
and their website provides fact sheets on a range of forensic issues which sum-
marise current literature into short (two page) documents. Topics include psychopa-
thy, criminal profiling and risk assessment. They also publish a series of articles
focusing on the ‘controversies’ in psychology and law and provide information on
forensic psychology courses across Europe.

12.4.2 European Federation of Psychiatric Trainees

In 2009, the European Board of Psychiatry published ‘European Framework for

Competencies in Psychiatry’ [5] which was developed in collaboration with the
European Federation of Psychiatric Trainees (EFPT) and involved consultation with
patient and carer organisation, national psychiatric association and the European
and World Psychiatric Associations. They identify seven key roles of the psychia-
trist as:

1 . Psychiatric expert/clinical decision maker

2. Communicator
3. Collaborator
4. Manager
5. Health advocate
6. Scholar
7. Professional

The aim of these objectives is to be used as a reference for national associations

and other bodies to develop or review curricula for postgraduate training. The docu-
ment also provides guidance on how competencies can be assessed and lists three
key principles to guide the assessment process.

• Assessment should be transparent.

• Each competency must be assessed.
• Competency assessment must be triangulated.
188 S. Howitt and L. Thomson

The document then goes on to outline a range of methods of assessment divided

in three domains – knowledge, competency and performance. Knowledge assess-
ments are written examinations (WE) and oral examinations (OE). Competency
assessments are clinical examinations (CE) and assessment of simulated clinical
encounter (ASCE). Performance assessments, also known as workplace-based
assessments (WPBA), are directly observed practice (DOP), multisource assess-
ment of performance (MSAP) and document-based discussion (DBD).

12.4.3 European Psychiatric Association (EPA) [6]

Founded in 1981, the European Psychiatric Association has active members in 88

countries with a stated mission to improve psychiatry and mental health care in
Europe. It provided a number of different educational opportunities including a
summer school, courses and e-learning programmes. For early career psychiatrists,
they run a ‘Gaining Experience Programme’ offering short observership placements
in psychiatric institutions across Europe and run a specific early career psychiatrists
programme at the annual European Congress of Psychiatry.

12.4.4 The Ghent Group

The Ghent Group is a European network of forensic psychiatrists which aims ‘To
support aspects of training, which will facilitate the practice of forensic psychiatry
across national boundaries in Europe, to meet and develop ideas, to make recom-
mendations about training and to support the development of professional groups in
countries developing new services’ [7].
A regular topic of discussion within the group has been the optimum model for
teaching and training for specialisation. Multidisciplinary training, including trainee
lawyers, has been proposed to enhance understanding of legal issues relating to
mentally disordered offenders. Through discussion, the group also concluded that
trainees themselves should be involved in discussions to develop best practice in
training and teaching, and consequently a training seminar for both consultants and
experienced trainees was developed.
The Ghent Group holds training seminars on an annual basis in Kloster Irsee in
Bavaria with 25 delegates attending (trainees in forensic psychiatry and young con-
sultant psychiatrists) from across Europe. The format is a mixture of lectures and
case vignettes to follow the offender journey from committing a serious offence to
release into the community. Participants work in groups of six to consider each
stage of the journey in each of the participant’s country comparing and contrasting
national positions. One member of each group then presents their group’s discus-
sion to the whole delegation to allow further discussion and debate. Through this
process, the pathway, and role of the forensic psychiatrist and psychologists within
it, was clarified for each country furthering the participant’s understanding of the
system of other countries as well as their own.
12  Teaching Forensic Psychiatry and Psychology in Europe 189

12.5 Key Teaching Themes

In addition to the skills and knowledge acquired during general psychiatry and psy-
chology, training those working in the field of forensic mental health requires addi-
tional expertise in the following fields.

12.5.1 Mental Health Legislation and the Interface Between

Mental Health and the Law

Mental health legislation varies across the European Union, and the competent
forensic clinician must have a sound understanding relevant to their role of the laws
and legal tests in their jurisdiction. This is important both for clinical practice and
for undertaking medicolegal work. In order to gain the required knowledge and
experience in this area, trainees require specialist teaching and supervision. Firstly,
they must develop an awareness of the relevant legislation, and this is most simply
delivered via lectures and then further self-directed learning. Once a theoretical
knowledge of relevant legislation has been acquired, the trainee must further their
understanding by undertaking appropriate medicolegal work under supervision.
Ideally, this should involve consultation prior to the patient being assessed, supervi-
sion of assessment (at least initially) and review and discussion of draft report. Only
by undertaking such work will the trainee develop an understanding of the legal
tests and become familiar with the correct terminology. The supervision of such
work also provides the trainer with an opportunity to assess progress and provide
feedback.

12.5.2 Risk Assessment and Management

For those working within forensic psychiatry and psychology, risk assessment
is paramount to identify and manage risk of harm both to the patient and to oth-
ers. There are a variety of tools in which practitioners can undertake training
and can utilise to recognise and classify risk including actuarial tools like the
Risk Matrix 2000 [8] and Structured Clinical Judgement tools like the HCR-20
V3 [9]. The 2007 Briefing Document ‘Giving up the Culture of Blame. Risk
Assessment and risk management in psychiatric practice’ [10] concluded that
interventions may decrease risk in one area only to increase in another and that
risk cannot be eliminated. They also concluded that a perfect risk management
system would have only a modest impact on rates of homicide by the mentally
ill and may influence debate from a position where the greatest good may be
done to the greatest number of people. For this reason, trainees must have guid-
ance and teaching not only in identifying risk but in conceptualising it and being
able to manage personal and professional anxiety associated with informed risk
management.
190 S. Howitt and L. Thomson

12.5.3 Professionalism and Ethics

For psychiatrists working within the field of forensic mental health, the four moral
principles of biomedical ethics recognised by Beauchamp and Childress [11] must
be considered. These are the following:

1. Respect for autonomy – respecting the patient’s right to make decisions around
their own care
2. Beneficence – acting in the patients best interest
3. Non-maleficence – doing no harm
4. Justice  – fairness concerning the distribution of resources and who gets what
treatment

For forensic practitioners, the pursuit of these ethical standards is complicated

not only by having to consider both the general public and the individual but also in
some countries by the dual roles of providing care and treatment whilst providing
expert opinion and evaluation to the court, often via third parties. As discussed by
Arboleda-Florez [12], this raises the question of whether forensic practitioners
should identify with a ‘welfare paradigm’ or a ‘justice paradigm’. As result of the
justice paradigm, treatment without consent and breaches of confidentiality may be
required and indeed be considered best practice. Whilst most experience in this field
will be acquired through practice under supervision during training, formal teaching
may be of benefit. The Madrid Declaration on Ethical Standards for Psychiatric
Practice 1977, most recently updated in 2011 [13], sets out an internationally appli-
cable ethical code on which to base practice and teaching. This declaration devised
by the World Psychiatric Association (WPA) also provides guidance concerning 16
specific situations of which the following advice is of relevance to forensic
practitioners.

No 2. Torture
‘Psychiatrists shall not take part in any process of mental or physical torture, even
when authorities attempt to force their involvement in such acts.’
No 3. Death penalty
‘Under no circumstances should psychiatrists participate in legally authorized exe-
cutions nor participate in assessments of competency to be executed.’
No 15. Dual responsibilities of psychiatrists
‘These situations may arise as part of legal proceedings (i.e. fitness to stand trial,
criminal responsibility, dangerousness, testamentary capacity) or other compe-
tency related needs, such as for insurance purposes when evaluating claims for
benefits, or for employment purposes when evaluating fitness to work or suit-
ability for a particular employment or specific task.
During therapeutic interactions conflicting situations may arise if the physician’s
knowledge of the patient’s condition cannot be kept private or when clinical
notes or medical records are part of a larger employment dossier, hence not con-
fidential to the clinical personnel in charge of the case (i.e. the military, correc-
12  Teaching Forensic Psychiatry and Psychology in Europe 191

tional systems, medical services for employees of large corporations, treatment

protocols paid by third parties).
It is the duty of a psychiatrist confronted with dual obligations and responsibilities at
assessment time to disclose to the person being assessed the nature of the triangu-
lar relationship and the absence of a therapeutic doctor-patient relationship,
besides the obligation to report to a third party even if the findings are negative
and potentially damaging to the interests of the person under assessment. Under
these circumstances, the person may choose not to proceed with the assessment.
Additionally, psychiatrists should advocate for separation of records and for limits
to exposure of information such that only elements of information that are essen-
tial for purposes of the agency can be revealed.’

Working with mentally disordered offenders can evoke strong feelings within the
professional team providing their care. This is something for which general training
can leave trainees underprepared to manage their own feelings and complex team
dynamics when the perpetrator of a particular offence, for example, murder or
sexual child abuse, requires treatment. Attending a Balint-style case-based
­
­discussion group may be helpful in understanding and managing some of the com-
plex emotions generated and allow consideration of the countertransference evoked
[14, 15]. In a traditional Balint group, named after psychoanalyst Michael Balint,
participants meet regularly with a leader and discuss a clinical case brought by one
of the participants. Discussion focuses on the doctor-patient relationship and is use-
ful for discussing cases where strong feels have been evoked in the clinician. Non-
case-­based reflective practice groups also have a role in allowing forensic trainees a
forum to discuss and consider the challenges and implications of working within
restrictive environments and the emotions this generates. Typically these sessions
take place on a weekly basis and are facilitated by someone out with the clinical
team. Themes include discussion of the complex dynamics of working within insti-
tutions and multidisciplinary team.

12.5.4 Clinical Expert/Witness Training

As previously discussed, one role of forensic clinicians is to provide an expert opin-

ion on an individual’s mental health to courts or other legal bodies. This evidence
can be written or verbal. Giving verbal evidence in court can be an anxiety-­provoking
experience for which trainees should receive guidance, training and support. This
will reduce anxiety and improve the impact of evidence delivered. Key components
are as follows:

• Training on the content of the written report which forms the basis for any
examination
• Knowledge of court proceedings and etiquette
• Advice regarding delivery of evidence
• Practice in undergoing cross-examination
192 S. Howitt and L. Thomson

Such teaching can be delivered on an informal basis, such as during a supervi-

sion session, or in a more formal environment. Some bodies and agencies provide
specialist training in this field, for example, the Swiss Society of Forensic Psychiatry.
Attending court to observe experienced psychiatrists given oral evidence can also
provide a valuable training experience.

12.6 Teaching Methods

As stated earlier, much training in forensic psychiatry and psychology is done

through an apprenticeship model during clinical placements. There are a number of
traditional and modern methods which can be utilised by teachers of forensic men-
tal health, each with its own advantages and limitations as outlined below.

12.6.1 Lectures

The most traditional of teaching methods is the formal lecture. This format contin-
ues to maintain a place in undergraduate and postgraduate teaching curriculums due
to its advantages over more contemporary methods as outlined below [16].

Advantages of Lectures
• Allow large volumes of basic information to be effectively delivered
• Cost-effective, allowing information to be disseminated to a large number to
students at the same
• Provide an overview and/or framework for further learning or activities
• Generate a curiosity and interest in a topic
• Allow teacher to retain control of material covered to ensure important learning
points are covered

Difficulties with Lectures

• Not suitable where large quality of detailed information is to be imparted as this
is unlikely to be retained
• Communication flows primarily from teacher to student
• Limited opportunity to check learning or to gain feedback of effectiveness of
teaching
• Poor student engagement with students adopting passive roles

These difficulties can be overcome or at least minimised by integrating interac-

tive techniques such as asking questions and reviewing. Lectures may be appropri-
ate in forensic psychiatry and psychology where a basic theoretic information needs
to be delivered, for teaching of undergraduates about the provision of forensic men-
tal health services or presenting new research at conferences or seminars.
12  Teaching Forensic Psychiatry and Psychology in Europe 193

12.6.2 Problem-Based Learning

Problem-based learning is a teaching method in which small groups of students

explore their existing knowledge, identify areas for further learning, perform
independent research and then return for group discussion. Learning centres
around a clinical case or problem and meetings occur in the presence of a facilita-
tor. As with lectures, there are advantages and disadvantages to utilising problem-
based learning [17].

Advantages
• Development of generalisable skills, e.g. self-directed learning
• Experience of small groups highly relevant to working with teams
• Increased motivation of learning
• Development of extensive, flexible knowledge base
• Improved communication and psychosocial skills
• Can be used flexibly across curriculum

Disadvantages
• Anxiety and uncertainly during initial phase of skills acquisition
• Increased resources required
• Clinicians concern that students lack knowledge
• Costly
• May be more suitable for mature students
• Unfamiliar to teachers and other staff

This method may be useful in forensic mental health not only as a method for
current trainees to develop knowledge and the habits of self-directed lifelong learn-
ing but through discussion of interesting and complex cases to inspire students and
junior trainees to pursue a career in this field [18].

12.6.3 Utilisation of Technology

Over the last 20 years, education has evolved to include a range of technologies in
developed countries. This can range from the use of Microsoft PowerPoint in lec-
tures and tutorials to online e-learning modules. When used effectively, technology
can improve engagement and enhance the learning experience, but when used inef-
fectively can distract from learning and feel misplaced.

1. Podcasts
Podcasts, that is, audio or video file downloaded via the Internet onto a com-
puter or a mobile device, are especially useful in providing specialist information
that can be accessed at a convenient time to recipients across the globe. These
194 S. Howitt and L. Thomson

allow for quick dissemination of recent updates in research and case law and are
particularly valuable in geographical regions with a small number of forensic
practitioners where specialist local teaching is not feasible.
2. Use of videos
Video cameras offer a cheap and readily available opportunity to record inter-
views with consenting patient. When used in case presentations, they offer the
audience an opportunity to assess the mental state of the patient and increase
engagement. Case presentations provide the opportunity to teach others about
themes or topics that arose in a particular case and to generate ideas and opinions
regarding diagnosis, care and treatment from colleagues. Videos are also useful
during the teaching of clinical and research tools, for example, the Hare’s
Psychopathy Checklist-Revised (PCL-R) 2003 [19], as an adjunct to case infor-
mation. This can allow demonstration and practice in the use of the tool and
generate discussion to improve inter-rater reliability. Policies must be in place to
ensure full consent is acquired prior to a video being made, videos are appropri-
ately stored and videos are destroyed when no longer required.
3. E-learning modules
In many European countries, continued professional development (CPD) is
required by employers and to maintain membership of professional bodies. This
often requires clinicians to record time spent training and at conferences.
Attending such events, especially for those working in small or remote depart-
ments, can be costly and time-consuming. Electronic learning modules (e-learn-
ing) are a cost-­effective way of undertaking core or additional learning at a
convenient time. Such modules are best suited to theoretical learning but are also
useful for facilitating consideration of ethical and legal issues. In the UK, the
Royal College of Psychiatrists has a range of CPD-accredited online modules
related to forensics from the assessment and treatment of sexually abnormal
behaviour to people with intellectual disability in custodial settings. These foren-
sic modules are found amongst a large collection encompassing different psychi-
atric specialities, clinical skills, professional skills and ethical issues.

12.6.4 Role Play

Although anxiety provoking for participants, role play can be an invaluable teaching
method for forensic clinicians. In Scotland, forensic psychiatric trainees in the
national training scheme attend monthly teaching sessions, with one session devoted
to giving evidence at a mental health tribunal or in court. Prior to the session, the
trainee supplied an anonymised report to a consultants forensic psychiatrist who
reads the report and then takes the role of a lawyer and cross-examines the trainee
upon it. The court or tribunal environment is simulated by other trainees taking the
role of judge and other members of the court and the trainee having to adhere to
court etiquette.
12  Teaching Forensic Psychiatry and Psychology in Europe 195

12.7 T
 he Role and Responsibility of Teachers in Forensic
Mental Health to Reduce Mental Health Stigma

Despite improved understanding and awareness of mental health issues, mental

health services remain underfunded [20] compared to physical health equivalents,
and stigma continues to affect an individual’s likelihood to present for help in a
timely fashion. Due to limited public understanding, particularly of psychotic disor-
ders like schizophrenia, a culture of fear prevails and there are misconceptions that
those suffering from mental disorder are more likely to be perpetrators of crime than
victims. It is the authors’ belief that those clinicians working within the field of
forensic mental health have a role of educating not only trainees but the wider pub-
lic to reduce this stigma.

12.8 Promotion of a Career in Forensic Mental Health

Reiss and Chamberlain [21] estimated that only half of UK medical schools provide
clinical placements, workshops, seminars or specialist study modules in forensic
psychiatry, and this is likely to be replicated across Europe. Even psychiatric or psy-
chology trainees may not have had exposure to forensic mental health with Reiss and
Famoroti [22] finding that a significant proportion of psychiatric trainees had not
visited a prison. Lack of awareness and exposure to the speciality is likely to affect
recruitment. Ensuring able candidates attracted to forensic practice has been one of
the considerations of the Ghent Group. Practising clinicians can play a role in pro-
moting careers in forensic mental health through attendance at careers fairs and by
organising work experience placements or ‘taster weeks’ for interested individuals.

Conclusions
Despite different routes to practice in forensic mental health across Europe and
variations in legislation, there are common skills and expertise which are required
by all forensic practitioners. Alongside national training, our European context
offers the additional opportunity for clinicians to learn how neighbouring countries
address universal problems and to further understanding of our own practice.
As outlined in this chapter, there are a number of traditional and evolving
teaching methods which can be used to develop knowledge and enhance exper-
tise. Forensic clinicians should consider teaching and training as a core compo-
nent of their occupation and endeavour to impart their skills and expertise.
As international links develop and evolve, forensic clinicians have the oppor-
tunity to share and learn from each other’s experiences. This will influence both
practice and policy necessitating additional training and teaching. Through shar-
ing of knowledge and ongoing research, forensic psychologists and psychiatrists
across Europe can work together to improve both standards of teaching and of
patient care.
196 S. Howitt and L. Thomson

Take-Home Messages
• Forensic psychologists and forensic psychiatrists require expert knowl-
edge and skills which must be gained through formal learning and
apprenticeship.
• Training is optimised by utilising a range of teaching techniques.
• Forensic mental health is an evolving field, and it is essential that practitio-
ners engage in lifelong learning.
• Pan-European bodies offer the opportunity to improve training and educa-
tion by facilitating the exchange of ideas and experiences.

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Specialist Training in Forensic Psychiatry
in Europe 13
Norbert Nedopil and Pamela Taylor

13.1 D
 ifferences and Common Ground in Legislation
and Practice

Forensic psychiatry is no longer seen as restricted by the national and jurisdictional

differences in the legislation and customs of individual countries. Specialisation,
training and certification are, however, not universally established—and compara-
tively new in the field. International exchange of knowledge is advancing, evidenced
in part by the growing numbers of systematic literature reviews in the field.
Although, when treated as a single nation, the USA still tends to dominate in terms
of research quantity, collectively Europe is playing at least a big part in research in
the field. In a systematic review of mental illness rates among prisoners, for exam-
ple, Fazel and Seewald [1] reported that they had identified studies from 24 different
countries published between January 1966 and December 2010; 14 were from
European countries, treating Scotland as a separate jurisdiction within the UK. It is
thus important to acknowledge that there are relevant differences, not only in legis-
lation but in details of social climate which could have a significant impact on inter-
pretation of findings from one country in another. Worldwide, it is important even to
take demographics into account, especially age and ethnic distributions [2]. In
Europe, this may be less of an issue, and diagnostic habits are more consistent, but
still countries face different illicit drug-taking problems and different habits in rela-
tion to alcohol consumption and have different approaches to how specialist

N. Nedopil (*)
Department of Forensic Psychiatry, Psychiatric Hospital of the University (LMU)
of München, Munich, Bavaria, Germany
e-mail: norbert.nedopil@med.uni-muenchen.de
P. Taylor, C.B.E., M.B.B.S., M.R.C.P.
Division of Psychological Medicine and Clinical Neurosciences,
Cardiff University School of Medicine, Cardiff, UK
e-mail: taylorpj2@cardiff.ac.uk

© Springer International Publishing AG, part of Springer Nature 2018 199

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_13
200 N. Nedopil and P. Taylor

services are organised [3, 4]. Although such systems have developed differently
across the member states of the European Union (EU), however, it seems likely that
we have more common ground than not in philosophies of treatment of offender
patients [5]. Forensic psychiatry is a growing field, with increasing numbers of
patients in forensic hospitals, increasing obligations for psychiatric experts in court
and in society and—luckily—increasing knowledge about how best to treat and
manage offenders with mental disorder.
Medical practitioners who are recognised as specialists in one country of the
European Union (EU) are entitled to practise that specialty in all other member
countries, subject to having appropriate language skills. Criminals or forensic psy-
chiatric patients may also move freely within the EU, and certainly some do so. It
is, therefore, important that they can be assessed and treated by forensic psychia-
trists outside their home country and there is sufficient knowledge and understand-
ing of systems in each country to be able to advise on transfers of sick prisoners or
manage patient movement when necessary.
There is a long history of ideas and initiatives on how to overcome the difficulties
brought about by differences between jurisdictions. First, there was the idea of har-
monising criminal law and thus also forensic practice in the different countries of
the EU [6]. This proposal was quickly dropped but was followed by resignation and
stagnation. Forensic psychiatry had few European platforms for furthering transna-
tional discussions. Within European psychiatric organisations, like the European
Psychiatric Association (EPA), forensic psychiatry played only a marginal role.
Since about 2000, forensic psychiatrists have taken the initiative to overcome this
stagnation and to build networks of professional exchange within the European
framework, both within the EPA and independent from it. The most important of
these is the Ghent Group, which provides an informal network for such tasks. Its
members have been trying to improve collaboration since 2004 (www.ghentgroup.
eu). It focuses mainly on teaching, training and providing specialist education in
forensic psychiatry, with a focus on EU countries but routinely including Norway
and Switzerland. The name ‘Ghent Group’ derives from the place of its first meet-
ing—Ghent, Belgium, in 2004.

13.2 Towards a Common Definition of Forensic Psychiatry

One of the first tasks for the Ghent Group was to agree a definition of forensic psy-
chiatry. This had to capture the following:

–– The range of knowledge required—medicine (including, but not confined to,

psychological medicine in all its aspects), relevant law, criminal and civil justice
systems, mental health systems, the relationships between mental disorder, anti-
social behaviour and offending
–– The aims and purpose of the work—assessment, care and safe treatment of men-
tally disordered offenders, including the skills required to achieve this—risk
assessment and management and the prevention of (further) victimisation
13  Specialist Training in Forensic Psychiatry in Europe 201

Contrary to the position of the American Academy of Psychiatry and the Law
(AAPL), which, in 2005, adopted special ethical guidelines for the practice of
forensic psychiatry (http://www.aapl.org/ethics.htm; see also [7]), which suggested
that somehow a duty to the court may override the medial ethic, the Ghent Group
agreed on the primacy of the medical ethic, even when duties include medicolegal
reports. It defined forensic psychiatry as ‘a specialty of medicine based on detailed
knowledge of relevant legal issues, criminal and civil justice systems, mental health
systems and the relationship between mental disorder, antisocial behaviour and
offending. Its purpose is the assessment, care and treatment of mentally disordered
offenders and others requiring similar services; risk assessment and management
and the prevention of further victimization are core elements of this’.

13.3 Knowledge and Skills Needed in Forensic Psychiatry

Forensic psychiatry, then, holds clinical skills in common with general medicine
and psychiatry and is perhaps distinguished from them in degree rather than nature
by the range and depth of other knowledge and skills required. It follows too that
some level of forensic psychiatric skill may be needed by all medical practitioners.
All may, for example, be called upon to provide expert evidence in court, and all
will at some stage have to make judgements at some level about a patient’s risk of
harm to others as well as to himself/herself. Forensic psychiatry training should,
therefore, be a core part of any medical curriculum—at both undergraduate and
postgraduate level. The forensic psychiatric specialist will then need specific skills
which include running specialist health facilities in which the different kinds of
security must be used therapeutically, the capacity for long-term treatment of
treatment-­refractory patients can be sustained and, for the most serious and persis-
tent offenders, accurate decisions on the timing and conditions for release are made,
taking account of victim needs. All these skills require a higher level of training. At
best, fully trained forensic psychiatrists should be among the most committed
beyond the more routine continuing education to regular peer review and reflective
practice. To take this idea one step further, the members of the Ghent Group reflected
on the skills and competencies needed in forensic psychiatry. According to Gunn
and Nedopil [8], Nedopil et  al. [9, 10] and Taylor et  al. [11], these include the
following:

–– Medicine and psychological medicine in all its aspects

–– Organisation of mental health systems
–– Criminology and criminal psychology
–– Legal concepts of competency and responsibility
–– The legal statutes and the principles outlined in the Conventions of the United
Nations and the European Council
–– The organisation of court systems and the code of conduct in court
–– Accurate and ethically appropriate communication within and outside the medi-
cal profession, including the legal profession, police, prison and probation staff,
202 N. Nedopil and P. Taylor

and with a range of helping agencies (such as housing or relevant charitable

­bodies), the wider public - whether as jurists, victims, concerned citizens who
live close to specialist units, and also the press; in addition, ensuring clarity of
communication with our patients/service users is a specialist skill in itself;
–– Methods of treatment for all relevant disorders and also perhaps applying thera-
peutic approaches to the offending per se
–– Interdisciplinary and multiagency work

Accepting this as the minimum range of skills required, one has to come to the
following conclusions:

–– If there are distinct qualities to the skills and competencies of forensic psychia-
trists, then there must be distinct training to ensure that those are in place.
–– If there are some tasks for which forensic psychiatrists are uniquely well quali-
fied, then completion of a specialist training ought to lead to specialist
recognition.

Anyone who delivers treatment services for offender patients would consider the
task to be possible only in the context of sound multidisciplinary practice. This,
however, is only possible if each contributing discipline recognises and is trained
for, although not necessarily confined to, specific roles within the team. This, in
turn, requires role clarity in the other professions and perhaps specialist training
there too. Given the breadth of knowledge and skill required to become a specialist
in forensic psychiatry and the number of other specialties it touches, it may be
important from the very earliest stages of career planning—even while people are
still in secondary education—to be clear about the career pathway [12].

13.4 Special Training

Currently, four countries offer training in forensic psychiatry which leads to a cer-
tificate of completed clinical training (CCT) in the specialty which would be recog-
nised throughout the EU.  These are Germany, Sweden, Switzerland and the
UK—and until recently, Ireland. Belgium has now recognised forensic psychiatry
as a subspecialty of psychiatry. Most other EU countries have some recognised
training, but no board approved specialist clinical certification, while some, such as
Austria, Denmark, Finland, the Netherlands, Norway and Spain, rely on universities
or official medical bodies to run relevant diploma courses. The situation is, however,
quite fluid. In 2014, in Austria, a task force of forensic psychiatrists created new
curricula and training courses, with a requirement that trainees attend nine 2-day
seminars over 1 year and receive a certificate of attendance. This may be a stepping
stone to further developments in clinical training. In some countries more than in
others, there are fears about specialisation in forensic psychiatry, and there has even
been hostility to specialist recognition [13, 14]. In part, the sibling rivalry is about
resources, in part about the rather different approaches to major mental illness. At
13  Specialist Training in Forensic Psychiatry in Europe 203

least as perceived by forensic psychiatrists, their general adult peers operate a pre-
dominantly crisis intervention model, whereas the forensic drive is to maintain
mental health once restored or improved. Intervention at crisis point is too late when
serious harm to others may be associated with deteriorating mental state.

13.4.1 Training in Forensic Psychiatry as a Recognised

Clinical Specialty

Training in forensic psychiatry in Germany started independently in five different

institutions in the 1980s. At that time, there was still rivalry between forensic psy-
chiatrists in different universities, who adhered to different schools of psychiatry.
These differences, which were equally present in general psychiatry, were only
overcome in the 1980s and 1990s. The first national interdisciplinary training
courses came in 1990, and certification in forensic psychiatry was first granted by
the German Psychiatric Association (DGPPN) with a structured training programme
and regulations in 2000. In 2003, the German Medical Association (Deutscher
Ärztetag) agreed to recognise forensic psychiatry as a subspecialty of psychiatry.
There are currently two overlapping ways to qualify in forensic psychiatry: certifi-
cation by the DGPPN and approval as a specialist by the State Medical Association.
One of the requirements for certification by DGPPN is 36 months of training in an
accredited institution, of which 12 months may be obtained during general psychi-
atric training; at least 6 months of the training must be in the treatment of mentally
ill offenders either in special hospitals or in prison.
The skill mix required for qualification in forensic psychiatry in Germany
includes ethics; relevant criminal, civil and social welfare laws; psychotherapeutic
treatments; evaluation of the ability to stand trial; evaluation of culpability/respon-
sibility; risk assessment; ability to act as a professional witness; and thus both to
write reports for courts and give oral evidence. There are around 230 certified foren-
sic psychiatrists in Germany, although the demand is increasing because of new
laws demanding more expert reports—estimated to exceed 300–350 specialists.
In Switzerland, the curriculum, requirements and qualifications are similar to
those in Germany, often adopted from them, but adapted to meet the requirements
of the Swiss legal code.
In Sweden, after qualifying in medicine, a 2-year internship includes 3 months in
psychiatry for everyone. Of those who choose to specialise in psychiatry, 90% go on
to become general psychiatrists or child and adolescent psychiatrists, each of which
has its own certificate of specialist clinical training requiring a minimum of 5 years.
Those who wish to become specialists in forensic psychiatry may start training only
after certification in one of these. It then takes a minimum of a further 2 years to
become a certified forensic psychiatrist; 1 year is focussed on learning to do court-­
ordered assessments and 1 year on training in treatments. Retention on the specialist
register requires participation in continuing medical education courses.
In the UK and in Ireland, until the early 2000s, postgraduate clinical training in
psychiatry was devised and inspected by the Royal College of Psychiatrists. In the
204 N. Nedopil and P. Taylor

UK, this then passed through the Postgraduate Medical Education and Training
Board (PMETB) of the medical licencing body, the General Medical Council
(GMC), where it now rests. When the College of Psychiatrists of Ireland was estab-
lished in 2009, postgraduate clinical training development and oversight passed to
this body, and forensic psychiatry is not for the time being recognised as a separate
specialty there, although it is hoped that this will change.
There remain strong similarities in forensic psychiatry specialist training between
Ireland and the UK. In both, after qualifying as a doctor, it is first necessary to com-
plete 3 years of general professional training in psychiatry and pass all sections of
the respective college membership examinations. The trainee is then eligible to
enter advanced/higher training. In the UK, this could be in any one of six psychiatric
specialties: general psychiatry, psychiatry of learning disability, old-age psychiatry,
forensic psychiatry, child and adolescent psychiatry or medical psychotherapy;
there are also three recognised subspecialties of substance misuse psychiatry, liai-
son psychiatry and rehabilitation psychiatry. There are a few training schemes left
which allow for dual specialty training, for example, in child and adolescent foren-
sic psychiatry or forensic psychotherapy. While single higher specialty training gen-
erally takes 3 years, dual training takes four.
Higher training in forensic psychiatry in both Ireland and the UK is a competency-­
based training. The core competencies are knowledge, skills and performance;
safety and quality; communication, partnership and teamwork; and maintaining
trust. These must be developed through experience at all levels of secure hospital
practice as well as prisons, courts of all kinds, including criminal and civil tribunals,
court diversion schemes, outpatient clinics and some related special institutions
including forensic learning disability clinics, adolescent and child clinics, victim
work and work with homeless people. Details for Ireland are at http://www.irishpsy-
chiatry.ie/Postgrad_Training.aspx and for the he UK at http://www.gmc-uk.org/
Forensic_submission_July_2016_GMP_mapping_FECC_approved_page_num-
bers_added_July_2016.pdf_67176891.pdf.
Training schemes are inspected periodically. There is no further examination in the
subject for higher trainees, but in order to gain the relevant registration, each trainee
must maintain a structured portfolio of evaluated experience, reviewed annually by
trainers to ensure that progress is satisfactory. Once registered in a clinical specialty,
this must be maintained through 5-year cycles of revalidation, which requires satis-
factory annual approved peer appraisal of continuing professional education and
development.

13.4.2 Other Higher Training in Forensic Psychiatry

It is impossible here to cover all training schemes and styles in Europe, so we have
chosen a few which are more familiar to us to illustrate the range of training experi-
ence offered.
In Belgium forensic psychiatry is now a recognised subspecialty of psychiatry.
There are four Flemish universities which run a diploma course in forensic
13  Specialist Training in Forensic Psychiatry in Europe 205

psychiatry and psychology. Together these universities provide a 2-year part-time

course, one emphasising work with sex offenders, but none particularly clinically
centred. Assessment is based on attendance at lectures or seminars. A Walloon uni-
versity also has a course in forensic psychiatry, mainly to teach expertise in court
work. People interested in recognised training in forensic psychiatry would expect
to complete 5 years of clinical training, one of which would be based with a forensic
psychiatric team and then spend an additional year specialising in some form of
clinical forensic psychiatric, although it is possible to complete 5 years of general
psychiatric training and follow this with 2 years in forensic psychiatry. At present,
recognition is either for preparing expert reports for the courts or running clinical
services, but not both.
In Denmark there is a strong interest in forensic psychiatry among general psy-
chiatrists, and it is now recognised as a subspecialty. There is no formal forensic
psychiatry training programme, although forensic psychiatry is one of the eight
mandatory 3-day courses for all postgraduate students, and clinicians who would
practise forensic psychiatry are encouraged to take on extra training, including
training in a country which has recognised specialty clinical training in the field.
There is no recognised clinical specialist training in forensic psychiatry in the
Netherlands, partly following from concerns that if these are developed, forensic
psychiatry would separate from general psychiatry. This may also relate to the
nature of organisation of services for offenders with mental disorder, split between
the ter beschikking stelling (TBS) system of specialist services run by the Dutch
Ministry of Justice (e.g. [15]), principally directed at prevention of recidivism of
serious crimes, and a separate healthcare system within prisons also run by the
Ministry of Justice as well as some regular health service provision. Both the former
are under the Dutch criminal code. The specialist care offered within the health
service under mental health law—for those who have impaired responsibility for
their criminal acts but are not deemed so dangerous—is more limited. There are
special conferences where forensic psychiatrists may learn material more specific
for their work, and attendance at a course on being an expert witness is mandatory
before presenting expert evidence in court.
In Spain, training developments have grown out of a long-standing division between
legal training in medicine and clinical and organisational training [16]—so people
wishing to specialise in work with offender patients must train in legal matters as
they relate to medicine (not specifically psychiatry) and in clinical matters (not spe-
cifically relating to offender patients, most of whom are treated in a prison setting).
As such, there is a tendency for courts to require opinions on offender patients from
doctors with legal training who may have no expertise in psychiatry at all. The
Spanish National Commission for Specialisation has considered allocating subspe-
cialty status to forensic psychiatry, which would mean 1 additional year of specific
clinical training after 3 years of general training in psychiatry; this has not happened
yet but may do so in the foreseeable future. A non-clinical master’s degree of
1–2  years in forensic psychiatry is available, such as the ones offered by the
Universitat Internacional de Catalunya, the Universidad Complutense de Madrid or
the Universidad Nacional de Educación a Distancia.
206 N. Nedopil and P. Taylor

13.5 Uniprofessional or Multidisciplinary Training?

In a specialty which relies strongly on multidisciplinary work, it seems logical

that the different professions should be learning from each other. There is real
benefit in bringing many clinical disciplines together given that offender patients
have complex problems and need the wide range of skills that this can bring. It is
thus important that each discipline brings unique skills to the clinical team and is
secure in them. This can only be realised by effective within-discipline training,
but there is an argument that complementing this with additional multi-profes-
sional training could bring further advantage. In Scotland, the School of Forensic
Mental Health (SoFMH) was established in 2007, to improve the quality of
response, care, treatment and outcomes for people with mental disorder who come
into contact with the criminal justice system or whose behaviour puts them at risk
of contact with it. It emphasises care and treatment delivered on a multidisci-
plinary and multiagency basis and offers multi-level and progressive provision of
learning across the college and university interface. An example of an SoFMH
programme is a self-directed learning programme, supported by mentors, which
provides basic information on patients’ ‘journeys’ through the forensic system,
with case examples, questions, a reflective diary and a bibliography for each of its
15 ‘chapters’ [17].
A wider professional training issue is raised by the growing acknowledgement of
the importance of interagency work—as in the UK multiagency public protection
arrangements (MAPPA) for discharged patients considered to have the likelihood of
posing some continuing risk to some others under some circumstances (for England
and Wales: https://www.justice.gov.uk/downloads/offenders/mappa/mappa-guid-
ance-2012-part1.pdf; for Scotland: http://www.gov.scot/Publications/2016/03/6905).
Agencies such as the police, probation and housing authorities have very different
goals, ethics and codes of practice from clinical practitioners, and it is important to
be able to understand each other. To date, most related training tends to be within-­
discipline and interdisciplinary efforts more informal.

13.6 International Training

Since 2010, the Ghent Group, through collaborations between the universities of
Munich, Cardiff and Antwerp and the Max Planck Institute for Foreign and
International Criminal Law (Freiburg, Germany), with substantial support from
Danish forensic psychiatrists, the UK Royal College of Psychiatrists and
Bildungswerk Irsee in Bavaria (Germany), has been bringing together forensic
psychiatry trainees and consultants from many European countries into a 4-day
seminar, led by an experienced international team, including an academic lawyer
specialising in international law. The format of the seminar mixes lecturing and
case work on relevant themed topics. Making constant comparisons between
national positions, the participants follow the paths of any given offender from
13  Specialist Training in Forensic Psychiatry in Europe 207

the moment he or she committed a serious crime, through the criminal justice
system of each country, their committal to the relevant institutions and on to
consideration of their release back into the wider community. So far the themes
have been:

–– Pathways of offenders in the different countries of Europe and the role of the
forensic psychiatrist
–– The role of psychiatrists within the criminal justice system in different countries
of Europe
–– Offenders with personality or other developmental disorders
–– Research and its impact on the practice of forensic psychiatry: exploring the
extent to which practice in each country is truly evidence based
–– Patients who clinicians find difficult to manage—how do they compare across
Europe?
–– Individual cases who have significantly influenced legislation and jurisdiction
–– Assessing and managing asylum seekers, refugees, other immigrants and other
people from different cultural and ethnical backgrounds

After some introductory, theoretical sessions, participants work in groups on

the case vignettes provided. One member of the group is then asked to present the
deliberations of the group to the plenum, for discussion and challenge by the other
participants and the trainers. The work is made more naturalistic by giving partici-
pants only one phase of the case at a time, with more information being released
as the case ‘progresses’. From this exchange, pathways into and through the crim-
inal justice system and the role of the forensic psychiatrist can be determined for
each country. A frequent comment at the end of each case is that participants had
not only learned about other systems but also understood their own legal system
much better. Being required to explain one’s own system to people without any
experience of it at all, while being used to managing a range of offending or psy-
chiatric problems, means that no one can shelter under the cover of assumptions
of knowledge. Also, participants discover new ways of dealing with offender
patients within their national context and how to understand better the interaction
between themselves, the offender/offender patient and the court. As participants
get involved in the role-­play, which is a key part of the seminar experience, they
learn also about feelings, prejudices and disappointments that they encounter
from all parties involved in criminal proceedings and how to share these appropri-
ately and deal with them.

Conclusions
The proximity of European countries and the fact that they share core values
relevant to work with offender patients while having different laws and legal
systems make them uniquely well placed to unite in training efforts and in
research. In all countries, forensic psychiatry has some unique features that are
not shared by most other medical disciplines:
208 N. Nedopil and P. Taylor

1. Forensic psychiatrists have to translate medical knowledge into terms which

other professionals, such as lawyers, courts, public agents and other decision
makers and sometimes even the public and the media, can understand and use for
their decisions.
2. While general psychiatrists must be ready to weigh their responsibilities towards
the patients with those towards public safety, including actual or potential vic-
tims, forensic psychiatrists must constantly do so and ensure that their patients
understand this position.
3. More than in other medical disciplines, work of forensic psychiatrists is integrated
in a multidisciplinary and multiagency approach, which does not only include
other empirical sciences but also law, policing and welfare organisations.

These unique features require special teaching and training methods, which
exceed the acquisition of knowledge and the practice of medical skills. They include
communication and the understanding of many professional roles and narratives
and how to cooperate effectively with nonmedical personnel who have a different
professional ethic while always maintaining medical standards and the ethical foun-
dation of their own profession [18].
We do not yet have much similarity in our training systems or the extent to which
forensic psychiatry is fully recognised as a specialty, but we have learned how much
we can learn from each other and how necessary and important that is to being able
to interpret and use much of the research data from each other’s countries.

Take-Home Messages
• Forensic psychiatry is, across European countries, variously a specialty,
subspecialty or development within medicine. The medical ethic applies at
all times, and great weight is placed on the prevention of harm and service
provision.
• In addition to clinical knowledge and skills, specialists in forensic psychia-
try need special knowledge and skills pertaining to legal concepts of com-
petency and responsibility, of wider ethical issues including the statutes of
the UN and the European Convention on Human Rights, of communica-
tion with nonmedical professions and of interdisciplinary and multiagency
collaboration.
• To achieve the knowledge, skills and competence, some European countries
have established specialist clinical training. Others have tended to rely on
attendance at courses, but these are primarily effective in knowledge transfer.
Skill development and competence emerge from supervised experience.
• European countries have started to exchange knowledge and to find com-
mon ground for teaching and training in forensic psychiatry. The Ghent
Group promotes this.
• People collaborating in residential Ghent Group seminars report that these
have substantially improved their knowledge of their own country’s prac-
tices as well as those in other European countries.
13  Specialist Training in Forensic Psychiatry in Europe 209

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approaches to treatment and demographic factors relevant to measurement of outcome. Int J
Forensic Ment Health. 2009;8:81–96.
3. Salize HJ, Dreßing H. Coercion, involuntary treatment and quality of mental health care: is
there any link? Curr Opin Psychiatry. 2005;18:576–84.
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Impact of Service Organisation
on Teaching and Training 14
Harry Kennedy, Luca Castelletti, and Owen O’Sullivan

14.1 Introduction

In this chapter, we will set out what we believe are the most universal or typical
structures that characterise service organisation in forensic mental health and then
discuss specialist teaching and training required to meet the needs of such services
for forensic patients. Models of service organisation for forensic mental health
should be continuously revised as the theory and practice of delivering such services
develops. Traditional service models were often documented in eighteenth-century
textbooks on hospital architecture, emphasising a static concept of lifelong care
(Kirkbride 1880; Burdett 1891). These authors had much to say about the selection,
training and roles of staff in such hospitals. This was followed by doubts about the
asylum system (Stanton and Schwartz 1954), then sociological critiques (Goffman
1961), careful consideration of the position of the mentally ill person in the asylum
(Goffman 1963), increasingly radical attacks on the concept of mental illness itself
(Szasz 1961), reasoned studies of long-term hospital patients (Wing and Brown
1970), politicisation of psychiatry (Foucault 1967), the politicisation of concepts of
disease, health and medicine (Foucault 1973) and the politicisation of prisons
(Foucault 1977). There were successful refutations of such critiques (Clare 1976),
while the historical failings were accepted (Hunter and McAlpine 1974; Clare 1976;

H. Kennedy
Academic Department of Psychiatry, Trinity College Dublin & National Forensic Mental
Health Service, Central Mental Hospital, Dublin, Ireland
e-mail: kennedh@tcd.ie
L. Castelletti (*)
Azienda Ospedaliera Carlo Poma, Mantova, Italy
e-mail: luca.castelletti@aopoma.it
O. O’Sullivan
National Forensic Mental Health Service, Central Mental Hospital, Dublin, Ireland
e-mail: owen.osullivan3@hse.ie

© Springer International Publishing AG, part of Springer Nature 2018 211

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_14
212 H. Kennedy et al.

Bynum et al. 1988). The post-modern attempt to deconstruct medicine and psychia-
try itself has been reconsidered from a sociological perspective (Collins and Pinch
2005) and sometimes from both a satirical (Sokol and Bricmont 1998) and self-­
critical perspective (Skrabanek and McCormick 1992). Only recently has culture in
psychiatry (Littlewood and Dein 2000) and in secure care (Bartlett 2016) been stud-
ied from an academic perspective.
Service organisation progressed to decarceration (Scull 1977, 1979, 1981;
Bynum et al. 1988), and the provision of services almost exclusively in the com-
munity (Hall and Brockington 1991; Murphy 1991) though this occurred in differ-
ent decades in different jurisdictions; Italy was an early adopter with Ireland a recent
example, while in some jurisdictions, there has been some reconsideration [1].
The next stage in the development of mental health services saw the emergence
of trans-institutionalisation [1], with a growing recognition of the need to make
mental health services accessible to homeless mentally ill people, mentally ill
prisoners and those in need of long-term supportive services in the community
(Torrey 2008).
This model in turn has developed into a nuanced range of services with an
emphasis on individual care plans (Thornicroft and Tansella 1999) and a recovery
orientation [2] (Drennan and Alred 2012). Modern policy-oriented writing often
omits any mention of forensic mental health pathways, hospitals or services. A com-
prehensive service for any defined population includes therapeutically safe and
secure services that are provided as part of a life-stage pathway tailored to the needs
of the individual at a particular stage in their life. Such highly specialist services are
selective supports for the larger general adult services. These provide for districts or
regions, and typically service populations of three to five million.
This development of specialist forensic mental health care as an integral part
of comprehensive mental health services will develop continuously over time
and will take different forms in each jurisdiction, shaped by the boundaries
between community, hospital and criminal justice services, processes and legis-
lation [83]. In Germany, The Netherlands and in England and Wales, patients can
be detained because of personality disorder; by contrast, in Ireland and France,
the law excludes detention on the grounds of personality disorder. Training for
the skills to provide such services must therefore be flexible and must emphasise
the acquisition of the ability to take an overview and a critical understanding of
the social and cultural influences that shape forensic mental health in each place
and in each era.
In order to consider the impact of service organisation on education and the
research that underpins training, this chapter will first outline the most common
structures and processes of forensic mental health services now. We will then briefly
describe the skills required to deliver the range of services that can be described as
forensic mental health, having constant regard for the commonality and overlap
with the mainstream of mental health services. Next, we will describe the diverse
roles of the mental health professions practicing in forensic mental health and the
training specific to each, having regard to the importance of multidisciplinary and
multi-agency work. We will briefly discuss the necessity of specialist knowledge
and training in law and ethics for practitioners in this challenging field. We will also
14  Impact of Service Organisation on Teaching and Training 213

describe briefly the training relevant to communicating assessments and opinions in

legal tribunals and hearings with particular reference to court decisions regarding
forensic mental treatment orders and release decision-making.

14.2 F
 orensic Mental Health Services Now:
Structures and Processes

14.2.1 Prison In-Reach and Court Diversion

Pathways into mental health care and treatment can be described as planned and appro-
priate or unplanned and dysfunctional. The planned pathway consists of a person or
their family and carers seeking help through primary care and being referred where
appropriate to secondary mental health services. Where necessary, secondary mental
health services may refer the person to highly specialised tertiary services such as
forensic mental health. Unplanned or dysfunctional pathways occur when, because of
an unmet mental health need, the person presents through some other route. Homeless
services, addiction services, schools and occupational health services are intermediate
community-based routes back to primary care or mental health services. However, con-
tact with the criminal justice system because of the consequences of unmet mental
health needs may be regarded as dysfunctional. In effect such a person has fallen
through the 'help-seeking' route designed to connect mentally disordered people with
appropriate mental health care. Therefore, many jurisdictions have clinical services and
legal processes designed to screen for mental disorder amongst those coming before
the courts or remanded into custody. The aim is to divert them to the most appropriate
mental health care whether that is in the community, in a local hospital or in a forensic
hospital. Street level liaison and diversion, police station screening and diversion,
courthouse screening and diversion and prison in-reach systems for screening and
diversion all represent approaches to this problem. In practice, court diversion systems
are usually highly dependent on support from psychiatric in-reach and screening ser-
vices in remand prisons [3, 4]. The only system demonstrated to meet the needs of all
those remanded in custody is the remand prison in-reach screening system [5].

14.2.2 Stratified Therapeutic Security

All psychiatric services, like all health services generally, are organised into differ-
ent levels of intensity of care and treatment and are designed to match different
levels of need. This is fundamentally a system-oriented approach to managing the
risk of adverse events and outcomes in the broadest sense (Adams 1995). Those
with acute, subacute and rehabilitation needs each need different levels of care. In
forensic practice, therapeutic security represents levels of care and can be described
in terms of environmental or physical security, procedural security and relational
security (Kinsley 1998) [6]. Relational security divides into quantitative relational
security, the ratio of staff to patients; and qualitative security, the extent to which
staff know their patients and have a strong working alliance with patients.
214 H. Kennedy et al.

Accordingly the hospital, a ward within a hospital or any part of a service including
community housing can be high or medium or low in physical or procedural or
relational security with any combination being possible. Clinicians require the skill
to assess the individual patient’s need for levels of therapeutic safety and security
and to place the patient so as to match those needs. Few will need the highest levels
of physical and environmental security, but relatively many will need the highest
levels of relational security and specialist treatment programmes. This corresponds
to a nuanced version of the risk-need-responsivity principle (Andrews and Bonta
2006). In practice, it is the seriousness of risk and not the probability of risk [6–11]
that matters most. The work of forensic rehabilitation and forensic community
teams and the levels of therapeutic security that can be provided in the community
has had limited but valuable preliminary research [12, 13].

14.2.3 Active Management of Length of Stay

The greatest risk facing a patient admitted to hospital including forensic hospital is
to have a very prolonged stay. This may arise because clinicians and review boards
are risk averse. Under some circumstances, economic pressures may lead to a short-
age of beds and pressure to discharge prematurely. The period spent at any given
level of therapeutic security, whether high, medium or low is therefore the result of
many competing considerations. Under these circumstances, there is a necessity for
objective evidence-based criteria. Triage criteria based on the seriousness of harm,
which are distinct from treatment outcomes are good predictors of length of stay
[14]. There is evidence that the dynamic items in risk assessment instruments such
as the HCR-20 predict failed transfers to less secure places and failed discharges
[15]. There is also evidence that the response to a range of treatments best thought
of as multimodal treatment predicts moves to less secure places and conditional
discharge [16, 17]. Similarly, change in measures of forensic recovery predict
moves to less secure places [18] and conditional discharge [16–18]. Ensuring that
appropriate treatments are delivered therefore becomes an essential element of
actively managing length of stay. Ensuring that response to treatment and recovery
is systematically and regularly measured and reported is also an essential element of
the active management of length of stay [9, 19].

14.2.4 Governance Structure

It is common for policy decisions to require that all forensic clinicians should be
trained in the use of the latest risk management instrument. In practice, this is futile
unless the training includes a system for using such instruments as aids to the
decision-­making process. One professional may use the new instrument and its
related skills almost randomly whenever he or she thinks of it. A group of clinicians
may pass the instrument around, and each will use it differently and for different
purposes. Only some consistent governance structure can derive the reliability and
validity claimed for such instruments and such skills.
14  Impact of Service Organisation on Teaching and Training 215

It is not enough that structured professional judgement should be applied to

assessing the need for therapeutic security or assessing and managing risk.
A judgement support framework is also required. A fair and just triage system
requires that a consistent governance structure is applied to triage and the manage-
ment of waiting lists (Daniels and Sabin 2002). In practice, this requires both the
use of a validated set of criteria, monitored by means of validated assessment instru-
ments, and a well-organised governance structure such as an admission panel to
decide on the allocation of patients to the appropriate level of therapeutic security
whether that be admission to a forensic hospital, admission to a locked psychiatric
intensive care unit, an open ward or an outpatient appointment [8, 20].
Similarly, once admitted, the active management of length of stay outlined above
requires that the routine outcome measurements are systematically reported to a
governance structure where decisions are made about movements from high to
medium, medium to low security or to the community. In practice in most jurisdic-
tions (Canada, The Netherlands, Scotland), this decision-maker is a statutory, inde-
pendent review board or tribunal. It is for the hospital governance structure, for
example, a clinical director to decide on a standard format for reporting to this tri-
bunal or board. Such reports should never be considered complete unless they
include a summary of serial routine outcome measurements over time [19] such as
the HCR-20, DUNDRUM-3 programme completion and DUNDRUM-4 forensic
recovery [15–17]. Decision-makers should demand such objective data as the basis
for opinions and recommendations placed before them.

14.2.5 Prison to Community

Mentally disordered persons leaving prison typically find themselves homeless and
no longer in touch with primary care or secondary specialist mental health services.
Accordingly, a system is essential for planning in advance of discharge to arrange
for aftercare. Typically such pre-release planning is one of the functions of prison
in-reach teams. Social workers often take the lead in this role because of their ability
to coordinate probation, housing, primary care, social welfare benefits and second-
ary mental health services.

14.2.6 Forensic Hospital to Conditional Discharge

There is remarkably little research concerning criteria for both safe and successful
conditional discharge. Readmission to forensic hospitals following conditional dis-
charge is increasingly common. The majority of readmissions are because of relapse
or recurrence of problem behaviours, substance misuse or relapse of symptoms
though without serious offending. Serious offending however does occur. There is
very little evidence concerning which treatments not only reduce the risk of reoff-
ending but reduce the seriousness of reoffending. Efforts to devise and validate
routine outcome measurements calibrated in meaningful units of change are how-
ever promising [21]. Measures of functional neurocognitive ability [22]
216 H. Kennedy et al.

increasingly show that those with severe and enduring mental illnesses have signifi-
cant impairments leading to disability [23, 24]. It is not surprising therefore that the
goal of discharging all patients from medium or low security to the community will
lead to demands being placed upon the individual for self-care and autonomy that
are beyond the abilities of some. Increasingly, the emphasis must be on assessing
the level of biopsychosocial supports required in order to avoid relapse, reoffending
or readmission and achieve a satisfactory quality of life. Forensic mental health
legislation commonly bestows powers for conditional discharge, a power that is rare
in civil mental health legislation. The matching of the conditions attached to dis-
charge with the psychosocial supports required for stability and recovery represents
a particular advantage of forensic mental health pathways.

14.3 S
 tructured Therapeutic Day and Treatment
Programmes

In northern European countries, the number of forensic secure beds has increased
steadily at a time when both prison places and general psychiatric hospital places
have reduced [25]. Some countries follow a radically different policy. For example,
in Italy, Law 81/2014 requires that referral to security beds must take second place
to any attempt to provide a care pathway in the community network. Elsewhere,
there is a widely accepted principle of the least restrictive option whereby patients
should be detained in no greater a degree of therapeutic security than is necessary
for safe care and treatment and for no longer than necessary. The Italian law also
requires that time spent in a forensic setting shall focus on the timely provision of
treatment aimed to discharge patients to lower levels of therapeutic security. This is
sometimes stated as the ethical principle of reciprocity [26] according to which
those deprived of their liberty by law are entitled to restorative treatment or at the
very least they are entitled to a quality of life that ensures dignity. To reduce the risk
of very long periods of detention in hospital, it is necessary to start rehabilitation
programmes soon after admission. While providing effective treatment programmes
is essential to achieve these goals, promoting quality of life is also an essential com-
ponent of achieving recovery goals. Patients in secure forensic hospitals often com-
plain of high levels of inactivity. A national study conducted in Italy on approximately
80% of the forensic population found that structured activities accounted for only
10% of the daytime hours [27], and these were mainly working activities. In the
next section, we will consider active means of addressing this.

14.3.1 A Balanced Day and Quality of Life

In order to maintain a safe and therapeutic environment in which to deliver special-

ist treatment programmes, great attention should be paid to the milieu in which
patients live and in which patients and clinicians work together. For these purposes,
milieu can be thought of in the same way as therapeutic security: environment, rela-
tional and procedural aspects of communal living. The Quality Network for Medium
14  Impact of Service Organisation on Teaching and Training 217

Secure Services of the Royal College of Psychiatrists in London sets as a target that
each patient should have 25 hours of structured activities a week. The use of these
25 hours has never been further quantified though it might reasonably be expected
that a therapeutic day should consist of a balance between formal treatments in the
mornings, individual or group; meaningful work in the afternoons, education or
occupation; and sport, creativity and leisure in the evenings. For many patients, the
provision of the simple regularities of communal living emulates the caring and
supportive structures of family life; rising at a regular time in the morning, eating
meals at regular times, preferably with trusted others; moving from living to work-
ing spaces in the course of a day, all of which are experienced as safe and support-
ive; and retiring to a personal space at night which is safe and individual [85]
(Newman 1972), all with access to fresh air, daylight, exercise and as much personal
choice and autonomy as are compatible with safety. While landmark studies by
Goffman (1961, 1963) on the anthropology of total institutions were succeeded by
further studies suggesting that excessively regimented and rigid hospital routines
and deprivation of personal property and personal space led to so-called institu-
tional neurosis (Wing and Brown 1970), in succeeding years the so-called institu-
tional neurosis has been reframed first as the negative symptoms of severe mental
illness [28] then as the neurocognitive impairments of neurodevelopmental disor-
ders including schizophrenia [23, 24]. Under these circumstances, a degree of struc-
turing is supportive for those who lack the capacity to maintain their own minimum
regularities, in order to tend to their physical and mental health unaided.

14.3.2 Treatment Programmes

The conventional view of the 1990s that treatment programmes should follow clear
guidelines, operationalised and manualised wherever possible in order to ensure
fidelity and effectiveness has been qualified in recent years. A recent overview
indicates that while specific and manualised treatments can be shown to have posi-
tive effect sizes, it is the more general aspects of treatment such as positive work-
ing alliance, frequency, intensity and duration that have the largest measurable
treatment effects [29]. Similarly, for violence reduction programmes, a compre-
hensive review suggests that multimodal approaches to treatment once again with
an emphasis on frequency and duration of treatment are most likely to be effective
rather than single specific and targeted interventions (McGuire 1995, 2002) [30].
The important qualities of the individual therapist [31] represent a particularly dif-
ficult challenge for research and training. Under these circumstances, Kennedy
et al. [9] using a Delphi style process have described seven pillars of care for peo-
ple with severe mental illness detained in forensic hospitals with the goal of
enabling such patients to be cared for in progressively less secure placements.
These seven pillars of care are:

• Physical health
• Mental health
• Substance misuse interventions
218 H. Kennedy et al.

• Problem behaviour interventions

• Self-care and activities of daily living
• Education, occupational and creativity
• Family and intimate relationships

Each of these is delivered in preliminary short-course interventions consisting

mainly of psychoeducation [32], full programmes which may last a minimum of
26 weeks and may have to be repeated a number of times until effective, and a third
phase of maintenance or self-maintenance. The content of each programme is not
prescriptive since best practice will evolve continuously, and individualisation will
always be necessary. Patients can be assessed for progress in each of these seven
programmes using scales calibrated in meaningful units of change from an initial
stage which may consist of lack of readiness for movement to a less secure place
through to readiness to move from a high or acute level of care to a subacute or
medium level of therapeutic security and then a move to low security followed by
movement to supported community placements and eventual achievement of full
autonomy. Operational criteria are given for each unit of meaningful change. These
can in turn be related to five paradigmatic theories concerning treatment and change
(Table 14.1).
For each patient, an individualised care and treatment plan can be constructed
from the elements of these treatment programmes. This treatment plan will evolve
in repeated cycles of care planning, for example, at 3–6 monthly intervals. Change
will occur according to the readiness and motivation of the individual patient.
Each revision of the individual treatment programme should be supported by the
active engagement of the patient with the multidisciplinary team so that it is the
patient who is the co-producer of the individual care and treatment plan. The
patient is placed at the centre of the care pathway in accordance with recovery
theory [33]. This is thought to be essential in order to regain hope and a sense of
personal agency. In addition to therapeutic engagement, goals include risk reduc-
tion and mental health recovery more generally. Richter et al. [21] have recently
shown that progress in the seven treatment domains above can be related directly
to reduction in dynamic risk of violence. Individual treatment programmes must
be pragmatic, taking account of strengths, vulnerabilities and motivations in the
individual person. Protective and resilience factors are increasingly recognised as
of equal importance to vulnerability factors [34, 35]. However, there is also a
growing emphasis on the need to identify proximate causal factors as targets for
treatment.
Finally, recovery goals such as an increased sense of personal agency, co-­
production of care and treatment goals and plans and hope are all valid outcome
measures when related to increased use of leave and return to the community [18].
The restoration of functional mental capacities and legal competencies should also
be regarded as relevant outcome measures and goals (Grisso 2003) [36]. Functional
mental capacities are conceptually difficult to understand without clinical training
and clinicians commonly mistake the ability to understand information for the abil-
ity to reason using that information [37].
14  Impact of Service Organisation on Teaching and Training 219

14.3.3 Quality of Life Programmes

Quality of life may be difficult to measure and may seem a paradoxical concept for
those deprived of their liberty while detained in hospital or in a prison, but quality
of life is an essential precondition for successful treatment, whether short term or
long term [38]. Respect for personal dignity must always involve guaranteeing qual-
ity of life in terms of the living environment (Hickman 2013), interpersonal rela-
tionships as well as professional relationships [39] and procedures to ensure that
these are sustained reliably over time [40]. Those who are unable to progress in
treatment due to treatment-resistant mental illnesses or impairments of neurocogni-
tion or social cognition are nonetheless entitled to dignity and quality of life in
accordance with the principle of reciprocity even when risk needs responsivity
requires high levels of therapeutic security for prolonged periods of time. For many
patients, providing the quantitative and qualitative relational supports necessary to
achieve Maslow’s basic needs is the buttressing which permits impaired and dis-
abled patients to nonetheless achieve Maslow’s higher goal of self-actualisation. It
is increasingly also recognised that the need for human contact can be fulfilled
through passive or active membership of the community even when that is a highly
selected community of fellow service users. Once again, supporting the basic needs
for human interaction may permit the achievement of some degree of self-­
transcendence, for example, by engaging in voluntary charitable work and other
contributions towards the social capital of the group. There are examples of excel-
lent practice, for example, in units for long-term forensic care within the TBS sys-
tem in the Netherlands (Pompe Kliniek Zeeland) and particularly in New Zealand,
for example, the Mason Clinic. The emphasis here is on providing those patients
who require very long periods of detention in conditions of high security with
opportunities for work that is known to have prosocial effects outside the hospital in
the broader community while at the same time contributing to communal activities
within the secure setting as well as self-actualisation through various forms of cre-
ative self-expression [41, 42] and cultural consciousness raising.

14.4 Forensic Mental Health Services and Specialist Skills

Mental health services generally, including forensic mental health services, are best
delivered by multidisciplinary teams, according to many policy statements. It is also
generally accepted that addressing the biopsychosocial needs of a mental health
patient will involve the coordination of many agencies beyond mental health ser-
vices including housing, welfare and occupational rehabilitation. In forensic con-
texts, a variety of criminal justice agencies and more specialised housing and
welfare agencies may be involved including police, probation, specialist services
for personality disorder, sex offenders, arsonists and other niche arrangements. An
overarching skill for senior clinicians is to plan, coordinate and sustain complex
treatment plans and pathways. In some jurisdictions, the role of case management
has been taken on by third-party state sponsored purchasers and commissioners of
220 H. Kennedy et al.

complex care packages, for example, NHS England or the TBS system in the
Netherlands. This is in contrast to the judicial role of review boards in Canada and
mental health tribunals elsewhere. The specialist skills required to fulfil such roles
remain largely unstudied. An awareness of social policy and social institutions,
criminal justice services and legal processes, service evaluation, audit cycles and
quality improvement would all be required at a governance level.
In this chapter, there will be insufficient space to deal with highly specialised
topics such as services and skills for psychopathic disorder, forensic intellectual and
developmental disorders, forensic child and adolescent mental health services, ser-
vices for the elderly offender, dual diagnosis services for substance misuse, acquired
brain injury and other ‘niche’ needs including sex offenders, arsonists or others.
Instead, this chapter will concentrate on the larger common aspects of forensic men-
tal health practice.

14.4.1 Risk-Need-Responsivity and Skills

The general principle that those presenting the highest risks should be allocated to
the highest levels of care translates into a series of practical steps each requiring
specific skills. Treatment and where necessary detention in conditions of thera-
peutic security should be regarded as a dynamic process. An individual patient
may need to move between the community and high, medium or low levels of
therapeutic security at different times in the course of a career. These dynamic
assessments fall under the general heading of needs assessment and cannot read-
ily be mapped onto risk assessments as generally understood. The factor mainly
determining the need for therapeutic security is the seriousness of the risk rather
than the probability [6–8, 10, 14, 20]. From the point of view of governance and
the clinical director of services providing forensic mental health pathways through
care, it is important that there should be well-organised systematic admissions
panels for consistency amongst those clinicians assessing need. Needs assessment
should be informed by evidence based and validated structured professional
judgement tools. The use of such tools in itself requires systems for training and
regular refresher exercises to ensure consistent inter-rater reliability and the
avoidance of drift.

14.4.2 Triage and Urgency Assessments for Admission

Assessing the level of therapeutic security to which a mentally disordered person

should be admitted is a core skill for forensic psychiatrists and forensic hospital
governance systems. Remarkably, little research has been published on this topic.
Eastman and Bellamy’s [43] Admission Criteria for Secure Services Schedule
(ACSeSS) was the first to set out criteria for assessing need for therapeutic security
and in effect postulated the use of clinically meaningful units of measurement—
since then other instruments for measuring need for therapeutic security have mostly
14  Impact of Service Organisation on Teaching and Training 221

followed the same scoring system with ‘4’ for high security, ‘3’ for medium secu-
rity, ‘2’ for low security, ‘1’ for open settings in hospital or the community and ‘0’
for independence. Eastman and Bellamy’s scheme set out seven domains relevant to
the need for therapeutic security including the gravity of recent or past violent
behaviour, the immediacy of any risk of violent behaviour in the community or in
hospital, psychopathology that ‘predicts’ the above, specialised psychopathology
that specifically determines anti-social behaviour (specialist forensic need), the
likely duration of the admission, unpredictability and lastly how the case would be
perceived by a criminal justice agency—a ‘political’ factor that might determine
admission to a higher level of security than other factors might indicate. There are
no published validations for this scheme. Kennedy [6] described definitions for lev-
els of therapeutic security, then went on to define needs for therapeutic security as
triage criteria; these were predominantly static and patient centred, so that a triage
recommendation could be formulated in the course of a pre-admission assessment
using the sort of information normally considered for such reviews. Shaw et al. [44]
published an instrument using visual analogue scales to measure patient-centred
factors such as security needs, dependency needs, treatment needs, ‘political’ con-
siderations and likely length of hospital stay. Kennedy [6] balanced the static nature
of these admission criteria by adding definitions for the levels of therapeutic secu-
rity and also by adding criteria for assessing the dynamic readiness for moves to less
secure settings. Subsequently, other instruments for needs assessment were pub-
lished, intended for cross-sectional surveys. Sugarman and Walker [45] published
the HoNOS-secure, a mixture of severity items and physical, staffing and proce-
dural items; Collins and Davies [46, 82] published the Security Needs Assessment
Profile (SNAP) containing mainly security-centred institutional factors such as
physical security, relational security and procedural security with detailed item defi-
nitions. Security-centred instruments or items are to some extent circular in their
reasoning—asking clinicians what height of wall or level of nursing care a patient
needs is itself the answer to the question, not a measure of the patient-centred fac-
tors determining that need. An actuarial tool was tested as an assessment of triaged
need in an English high-secure hospital [47]; this was based on risk factors which
contained only one item reflecting seriousness of violence and perhaps for that rea-
son had a moderate receiver operating characteristic and modest predictive power
[47]. Kennedy et  al. [9, et  seq] built on Kennedy’s [6] paper to describe the
Dangerousness Understanding Recovery and Urgency Manual (DUNDRUM tool-
kit). This is a series of structured professional judgement instruments describing
patient-centred factors and some victim-centred factors influencing need for thera-
peutic security, urgency of need when on a waiting list, a set of measures of response
to seven treatment domains or ‘pillars’ representing multimodal treatment pro-
grammes and operationalized criteria for recovery in a forensic context as well as a
set of self-report criteria co-produced by service users [14, 18]. These have been
extensively validated both by the authors and in other jurisdictions including
England, The Netherlands and New South Wales [5, 7, 8, 14, 16–18, 20, 48, 49]
(Adams et  al. 2018). The DUNDRUM handbook says that the item content was
arrived at by a Delphi process of distilling the collective experience of clinicians
222 H. Kennedy et al.

who had worked in many jurisdictions. The handbook describes these items as
intended not only for assessing individual cases but also as training material for
forensic clinicians.

14.4.3 Risk Assessments

Risk assessment is considered a core skill for forensic practitioners. Not all mem-
bers of a multidisciplinary team (MDT) require the same risk assessment tools to
fulfil their roles, and different members of the MDT may require different types of
knowledge and expertise in the use of such instruments. There is evidence in the
literature that the clinical and risk scales of the HCR-20 [50] (Webster and Hucker
2003) can predict those forensic patients who will be violent when discharged from
medium security [51, 52] and those who will be recalled following transfer to a less
secure placement [15]. Accordingly, risk assessment instruments should be incorpo-
rated more systematically into the processes of decision-making, for example, in
reports to review boards and tribunals [19] and should therefore be part of the train-
ing of treating clinicians and experts giving evidence and of the members of such
decision-making bodies. However, such risk assessments have also been criticised
because of their high false-positive rate when the ‘base rate’ incidence of violence
is low [53] though this criticism itself may fail at the system level [54].
Short-term risk assessment instruments such as the Brøset [55] and DASA [56]
are proximate and causal in their content rather than distal and indirect ‘risk’ fac-
tors. For this reason, short-term risk assessments such as the Brøset and DASA
lend themselves to immediate interventions such as de-escalation and are typically
used by nurses and other ward-based staff. While the interventions to ameliorate
proximate causal factors are directly linked to the content of such instruments—
engagement, distraction, time-out, the interventions necessary to reduce static and
dynamic risk factors identified in longer-term instruments such as the HCR-20 may
be less clear. The risk management companion guide (Douglas et al. 2001) is in
this respect a beacon of light for clinicians drafting individual treatment plans and
a guide for future clinical research and service development. However, much more
research is needed to make risk assessments directly relevant to treatment and
rehabilitation [12].
There is some evidence that very general indicators of ability and well-being
such as the Global Assessment of Function are almost as good predictors of inpa-
tient violence in forensic patients as formal risk assessments such as the HCR-­20
[57]; while new instruments assessing protective factors also perfume as well as
risk-vulnerability assessments [34, 58]. This raises interesting questions about the
nature of risk assessment instruments as a way of achieving an empathic under-
standing of the patient and their risks [59]. The content of a risk assessment may be
the most appropriate way of selecting a specific tool when identifying remediable
problems relevant to violence.
There is worrying evidence that risk assessment instruments may be relatively
insensitive to change [60] though there is new evidence of sensitivity to change in
the earlier stages of treatment [21]. While ‘treating violence’ remains central to the
14  Impact of Service Organisation on Teaching and Training 223

perceived purpose of forensic mental health services (Maden 2007), the actual evi-
dence that treatment reduces risk or the severity of risk is relatively new [21] and
requires much more research.

14.4.4 Treatment and Recovery Measures

Structures for multimodal treatment have been described above. The coordina-
tion and delivery of such programmes in a sustainable cycle over time requires
multidisciplinary coordination within hospital pathways and community path-
ways or within prisons. Part of the skill in doing this involves a regular review of
the best evidence concerning effectiveness [29, 30]. At the moment, this evi-
dence largely rests on systematic review (McGuire 1995, 2002) [30]) with little
evidence available at the standard of meta-analysis because of the paucity of
randomised controlled trials. Where randomised controlled trials exist, there is
little consistency concerning the nature of the control condition or ‘treatment as
usual’.
Against this background, it remains possible to use general outcome measures
such as the Clinical Global Impression Scale [61, 62], the Global Assessment of
Function [63], Social and Occupational Functional Assessment Scale (SOFAS),
Global Assessment of Relational Functioning (GARF) [64] and a range of other
measures of need including the Health of the Nation Outcome Scales (HoNOS)
and Camberwell Assessment of Need (CAN) [84]. All of these are best rated by
multidisciplinary teams in the course of regular cycles of case conference and care
planning so that serial measurements can be compiled. However, the general
nature of these assessments means that they may offer limited reassurance regard-
ing treatment and recovery outcomes specifically relevant to risk (probability) of
serious violence. A specific specialist skill therefore consists of identifying rele-
vant treatment goals and the means of measuring the extent to which they are
achieved.
Some measures of the need for therapeutic security already referred to such as
the HoNOS-SECURE [45] or the SNAP [46] may provide measures of progress
towards needing less therapeutic security, but in so far as these ask circular ques-
tions (‘does the patient need to be detained behind a 3.5m fence’), they are not really
measures of progress in a relevant treatment. Only the HCR-20 and the DUNDRUM-3
programme completion and DUNDRUM-4 forensic recovery scales have published
validated studies showing that they predict moves from higher to lower secure set-
tings and conditional discharge  using scales composed of patient centred items.
There is also evidence [21] that reliable and meaningful change in measures of
programme completion can be related to reductions in measured risk of violence
though much more needs to be done to establish chains of causation. It can be
shown also that neurocognitive impairment has an adverse effect on change in pro-
gramme completion scores [21].
Recovery as a concept may seem difficult to reconcile with systematic therapeu-
tic security, but there is evidence that working alliance [39] and recovery principles
generally are fostered and practiced in forensic settings [33, 65–67].
224 H. Kennedy et al.

14.5 M
 ental Health Professionals Practicing
in Forensic Mental Health

Forensic mental health services are distinguished from other parts of a comprehen-
sive mental health service in both qualitative and quantitative ways. Quantitatively
forensic mental health services provide a carefully structured range of levels of thera-
peutic security at levels much higher than are required in general adult services.
Qualitatively, the emphasis on risk of serious violence with the means of addressing
this is a distinguishing factor. In practice, the importance of positive working alli-
ance, service user engagement and a recovery orientation all underline the similari-
ties between general and forensic mental health services for people with mental
disorders. In this context, it has always been possible for practitioners to move
between general adult and forensic services. However, it would be wrong to underes-
timate the importance of specialist training and cumulative experience over the
course of a career when assessing, advising and treating mentally disordered offend-
ers and liaising with the many agencies involved in their pathways through care and
custody. For each of the professions involved, there is a progression from studying a
formal curriculum of basic sciences through training in clinic skills on to the acquisi-
tion of expertise. Expertise is variously defined as both the use of deliberative judge-
ment and over time the acquisition of what appears to be a mixture of deliberative
and intuitive judgement [59, 68], while a more formal definition of expertise would
distinguish between the interactive expertise of journalists and lawyers and the con-
tributory expertise of highly skilled and experienced practitioners who are capable of
generating new knowledge in their field [46, 82]. Interactive experts commonly over-
estimate their expertise. Contributory expertise is undervalued in so-called health
economies. Research training and continuing clinical and research experience are
required in order to achieve the highest levels of expertise. This is particularly true
amongst those who are responsible for undergraduate and postgraduate professional
training and for those who are responsible for translating research and scientific
advances into policy and service development.

14.5.1 Psychiatrists

In many jurisdictions, higher training in psychiatry is common for all sub-­specialties.

In some jurisdictions, higher training can lead to registerable specialist recognition
as a forensic psychiatrist. After medical qualification in the UK and Ireland, a 3-year
competency-based basic specialist training in psychiatry is followed by a 3-year
specialist training in forensic psychiatry, and a curriculum for this is published by
the Royal College of Psychiatrists in the UK. In North America, after medical quali-
fication, a 3-year specialist training in psychiatry is followed by a 1-year fellowship
in forensic psychiatry. The competencies outlined typically include a knowledge of
the uses of therapeutic security, risk assessment and risk management, the organisa-
tion and delivery of prison in-reach and court diversion mental health services and
community-based forensic rehabilitation and recovery services.
14  Impact of Service Organisation on Teaching and Training 225

In most jurisdictions, psychiatrists are required by law to lead a multidisciplinary

team and to bear legal responsibility for the care and treatment of psychiatric patients,
particularly in hospital settings. Exceptions exist in some jurisdictions (England and
Wales, The Netherlands) where psychologists may take legal responsibility for the
care and treatment of patients with personality disorder or intellectual and develop-
mental disorders. As the leader of the multidisciplinary team, the psychiatrist must be
able to fill the role of chair, standard setter, goal setter, negotiator, consensus builder,
limit setter, expert in relation to medical matters, facilitator in relation to the special-
ist skills of other disciplines, narrator, interpreter and formulator in relation to bio-
psychosocial understanding of the patient (Osler 1913, 1926). The psychiatrist must
also take responsibility for maintaining a positive therapeutic relationship and work-
ing alliance with the patient, the patient’s family and carers and the entire team [29].
The relationship of a psychiatrist with their patients is often a long-term relationship.
Under the circumstances, the therapeutic relationship itself becomes central to
achieving successful outcomes in the domains of treatment and programme comple-
tion, quality of life and the protection of rights and dignity. The psychiatrist as team
leader has a particular responsibility to act as advocate for services, resources and
rights for their patients. As outlined below however the ethical position of the consul-
tant psychiatrist in forensic practice is often complex. The careful balancing of a
patient’s individual rights, responsibilities, autonomy and dependency needs and the
need to maintain the safety of the patient and those who come in contact with him or
her is a matter for constant reflection and review. The ability to express decision-
making in plain language and to explain an opinion in transparent terms based on
good clinical evidence will regularly be subject to cross-examination in forensic set-
tings. An ability therefore to present evidence both in writing and orally is one of the
essential skills for a forensic psychiatrist.

14.5.2 Nurses

Forensic mental health nursing [69] demands a constant balancing of custodial, paren-
talistic and behaviour-changing care and interactive, relational and personal quality-
dependent care [70]. Nurses in mental health practice may have been trained
specifically in psychiatric nursing in some jurisdictions, while in other jurisdictions,
they may have had a general nursing training with postgraduate specialist qualifica-
tions in psychiatric nursing. Formal training in forensic nursing [71] is usually pro-
vided at postgraduate level. In mental health settings generally, nurses have a
responsibility to ensure that patient experiences are positive. Typically, the nurse who
takes on the role of primary nurse will have daily contact with the patient and will
have responsibility for engaging the patient in their care planning and recovery pro-
cesses. In hospital settings, ward-based nurses have the responsibility for ensuring the
ward environment is physically safe, clean and healthy and also that the ward environ-
ment is caring, supportive and friendly. In a forensic setting, attention to quantitative
and qualitative relational security is particularly important [72]. Relating staff to
patient ratios to indices of need is well developed for physical dependency needs but
226 H. Kennedy et al.

less well developed as yet in relation to therapeutic safety and security [6] though
there is some evidence that qualitative relational security helps prevent violence [40].
Limit setting in a way that is fair, respectful, consistent and knowledgeable and shows
empathic engagement is recommended from qualitative research [73, 74].
In forensic settings, nurses and nursing assistants or social therapists typically
will all be trained in the prevention and management of violence and aggression.
The emphasis falls heavily on short-term risk assessment leading to de-escalation
designed in order to minimise the use of intrusive, restrictive or coercive practices
such as restraint, seclusion and forced medication [75]. Where these are used, it
should be possible to demonstrate that their use is proportionate.
In prison in-reach settings, nurses and social workers who are typically trained to
Masters level may be involved in screening and triage and have a significant role in
arranging alternative placements necessary for court diversion schemes. In forensic
community rehabilitation and recovery teams, mental health social workers and
community mental health nurses working with the supervising psychiatrist and
operating in accordance with assertive community treatment principles may take on
an enhanced role in relation to reporting to courts or review boards and using the
conditions attached to conditional discharge as a means of ensuring long-term sta-
bility and quality of life.

14.5.3 Social Therapists

There are a variety of roles for health-care assistants and social therapists at various
stages in the forensic care pathway. In inpatient settings, social therapists contribute
to skills mix. This often involves taking a direct role in the physical care of patients
who may need support and assistance with activities of daily living. More generally,
social therapists may bring life experience to the hospital setting enabling them to
communicate and relate directly with those from a variety of backgrounds, often
with appropriate cultural matching and sensitivity. Social therapists typically have
postgraduate qualifications at certificate or diploma level and may also have under-
graduate qualifications in health care, psychology or social work. Graduates in psy-
chology, social science, health science and other academic disciplines may elect to
work as social therapists in order to acquire clinical work experience prior to under-
taking formal professional training in one of the allied health disciplines, or they
may be engaged in a primary career or in a midlife change of career. For those
recruited in midlife, bringing life experience from entirely different walks of life
can be particularly enriching in relation to education, occupation and creativity and
the humanising of ward atmosphere [38, 76, 77].

14.5.4 Psychologists

Clinical psychologists bring two specific skill sets to the multidisciplinary forensic
mental health team. The first concerns neuropsychometric and neuropsychological
testing in accordance with validated and reliable measures. The recent progression
14  Impact of Service Organisation on Teaching and Training 227

from traditional measures of academic ability such as the Wechsler Adult Intelligence
Scales to measurement of functional neurocognitive abilities such as the Matrix
Consensus Cognitive Battery [22], which includes a measure of social cognition, has to
some extent led to a reappraisal of schizophrenia and other severe and enduring mental
illnesses as neurocognitive and developmental disorders [23, 24, 78] in which impaired
mental capacity arises from neurocognitive impairments rather than simply arising
from delusions and hallucinations. It is becoming increasingly obvious that delusions,
hallucinations and violence arise from neurocognitive impairments rather than vice
versa [79] and that these neurocognitive impairments are relevant to violence [79].
Clinical psychologists also bring training and expertise in a range of evidence-­
based psychotherapies. Bearing in mind the increasing recognition of neurocogni-
tive impairments [80], these may commence with cognitive remediation therapies,
progressing when the patient is sufficiently able, to metacognitive therapies which
are seen as preparatory to individual and group forms of psychoeducational, moti-
vational and cognitive-behavioural therapies. While these may be directed towards
symptoms of mental illness, the group and individual approaches to cognitive
behavioural therapy may also address specific problem behaviours including anger,
violence, negative attitudes to women, fire-setting behaviours, sexual offending and
a range of other specific problems. Where there are enduring problems with disposi-
tions and personality traits, therapies may also be directed towards longer-term
structured transference-based approaches such as cognitive analytic therapy where
there is sufficient evidence to support this.
Counselling psychologists typically are trained in a wide range of evidence-­
based therapies including all those mentioned so far, as well as dialectic and metal-
izing therapies and other evidence-based therapies as appropriate.
Forensic psychologists often find a specific role in relation to prison and correction
settings where their skills in risk assessment may inform the organisation and manage-
ment of prison regimes. ‘Forensic’ psychologists working in these settings may have to
think carefully about the differences between clinical ethics and security ethics where
there is actually no ‘dual role’. This problem would not arise when working in a prison
hospital, where clinical ethics has the usual balancing role in dual obligations.
Psychologists in any forensic setting may assist other disciplines in managing
acute threats of violence through designing behavioural management plans orien-
tated around identifying individual antecedents, individual behaviours and the con-
sequences which may reinforce repetitive dysfunctional behaviour so that
alternatives to violence can be rewarded while unintended rewards for violent or
aggressive behaviour are removed.
Psychologists may also have a particular role in relation to trauma-informed care
and the psychological treatment of post-traumatic stress and attachment disorders.

14.5.5 Occupational Therapists

Occupational therapists have specialist skills in assessment and rehabilitative thera-

pies concerning motor and process skills relevant to self-care, activities of daily
living, work and leisure activities [81, 86]. Typically such assessments and
228 H. Kennedy et al.

rehabilitative programmes are orientated around a model of human occupations. As

the understanding of neurocognitive and social cognitive impairment in severe and
enduring mental illness and other mental disorders becomes clearer, the importance
of process abilities in achieving rehabilitation and recovery goals is emerging as
central to good outcomes in mental health and particularly in forensic mental health.

14.5.6 Social Workers

Social workers combine training in sociology, social anthropology and social insti-
tutions with a knowledge of individual case work and advocacy. Child protection in
statutory contexts, and victim liaison concerning the rights of victims are also within
the special expetise of social workers. The increasing importance of care pathways
in mental health and particularly in forensic mental health can be traced to this aca-
demic and intellectual field. Social workers typically focus on the person in their
family, community and social network. In many jurisdictions, social workers have
an independent role in relation to mental health law orientated towards assisting or
supporting the statutory roles of next of kin, family and careers while at the same
time having an advocacy role in ensuring that the least restrictive option is found
and made available when choices must be made regarding the use of legal measures
or placement in secure and restrictive settings. Social workers may find themselves
in the role of social supervisors either in forensic mental health social work or in
probation work. As in other aspects of forensic mental health practice, this role
almost always commences with the engagement in a negotiation regarding a volun-
tary contract so that the service user accepts legally binding conditions as an aid to
stability, recovery and progressive autonomy.
Social workers may also take professional or legally defined roles in relation to
advocacy and decision-making variously defined in law as guardianship, guardian
ad litem, social supervisor or a range of other such roles. Social workers also com-
monly take a lead in family interventions.
A number of related roles may work closely with social workers including hous-
ing support workers, welfare officers and youth workers.

14.6 Training in Law and Ethics for Clinicians

14.6.1 Ethics in Forensic Mental Health Practice

Ethics is to law as physics is to engineering. An education in ethics therefore com-

monly forms part of the undergraduate or basic training in each of the mental health
disciplines described above. Treating mentally disordered patients who may have
impaired decision-making capacity presents special difficulties due to conflicting
principles when those patients are formally detained and deprived of liberty.
Forensic patients are usually subject to treatment without consent at least for a time
during their pathway through forensic services. Treatment may at times include
personally restrictive and intrusive practices such as seclusion and restraint.
14  Impact of Service Organisation on Teaching and Training 229

Education and training is required in the ability to think critically and to balance the
patient's  best interests  and the  public interest. Reasoning about  the necessity to
maintain a safe environment in order to provide restorative care and treatment is part
of the preparation for ethical professional practice. Scepticism about the more
fashion-­bound and media-amplified trends in psychiatry is essential (Hacking
1995). An awareness of international ethical conventions such as the European
Convention on Human Rights and the United Nations Convention on the Rights of
Persons with Disabilities and an understanding of how these are interpreted is an
essential skill. The ability to understand the distinction between ethical processes
and value judgements is a prerequisite for maintaining the positive therapeutic
regard which is one of the necessary preconditions for successful treatment. The
distinction between processes and values is also necessary for maintaining a hospi-
tal culture in which therapy prevails over custody. At the same time, the ability to
maintain sufficient objectivity to be aware of risks and to safely manage risks is part
of a broader ethical obligation to maintain professional and personal boundaries. All
of this arises both from formal education and from professional training with expe-
rienced role models.

14.6.2 Mental Health Law for Clinicians

Some clinicians choose to take specialist postgraduate qualifications in mental health

law. This is by no means central to the practice of forensic psychiatry or other forensic
mental health professions. Curricula that are sufficiently broad to include an aware-
ness of human rights can bring an enlightening awareness of legal concepts of mind
and legal concepts of causation (Hart 1977; Hart and Honore 1985) which often sit
uneasily with scientific concepts. Studying the extent to which they are compatible or
otherwise can be of great benefit when writing medicolegal reports and giving oral
evidence before courts or review boards. Studying the extent to which legal and scien-
tific concepts of mind and causation are or are not compatible can be enlightening
(Kenny 1989) provided clinicians do not succumb to the glamour of rhetoric
(Marjoribanks 1950; Schopenhaur 2012). In many respects, the role of the forensic
psychiatrist in court is similar to the role of the liaison psychiatrist in a general hospi-
tal. Finding a common language is a greater challenge, and the onus is on the psychia-
trist to communicate in jargon-free language and to make no assumptions about the
acceptance of universal scientific principles. In this context, the logical language of
the legal draftsman and the clarity of written judgements by senior judges (Dworkin
1977; Posner 2008) contribute greatly to our modern understanding of functional
mental capacity, of free will and responsibility and of basic principles of fair process,
a right to be heard and freedom from bias. When acting as leader of a multidisci-
plinary team, these principles of natural justice which arise from the humanities rather
than from the sciences are valuable ways to ensure that constructive criticism is wel-
comed in the best interests of good decision-making (Peay 2003, Posner 2008, Prins
1980). It is the courts who decide who is an expert, often with surprising latitude
(Briskman 1988). The study of the subject of expertise itself is perhaps one of the
most important formative subjects for forensic specialists [46, 82].
230 H. Kennedy et al.

14.6.3 Communication Skills: Writing Reports

Clinicians coming to the end of a scientific and clinical training commonly find
themselves in difficulties when trying to express thoughts clearly. The skills involved
require practice and supervision. A structured court report should include within it
a psycho-biographical history that contains relevant facts upon which an expert
opinion may be based. The supervision of an experienced trainer and cumulative
experience over time is essential.

14.6.4 Communication Skills: Oral Evidence

It is always possible with training and experience to learn to write a clear and well-­
reasoned court report. Assisting the court by giving clear oral evidence is however
more than a skill. The ability to understand an audience, to hold their attention and
to engage them was regarded in classical times as an essential skill for any educated
person. When giving evidence before a jury, there is the constant danger of rhetoric
that appeals to emotion and to lower forms of argument (Marjoribanks 1950;
Schopenhaur 2012) rather than the unbiased presentation of facts followed by rea-
soned presentation of opinion within matters of expertise. There is however no obli-
gation to be popular or to please—on the contrary, the expert witness has an
obligation to be truthful (Said 1993) and to assist the court.

14.7 Summary

An emergent theme has been the need to equip professionals with the general and
specialist education to continue to acquire new skills over a career. There is also a
need to educate those clinicians with so-called contributory expertise [46, 82] who
will ensure that translational research and clinical research and development will
continue as the basis for service improvement and the regular updating of training
curricula and continuing professional development. Those with ‘interactive exper-
tise’ acquired through contact with the ‘contributory’ expert clinicians include man-
agers, lawyers and journalists. It is essential that there is a mutual understanding of
these distinct roles and a mutual recognition of the limits of each. It is also essential
that there is a harmonious division of leadership roles between the two. Where a
choice must be made, it is in general better for expert clinicians to take on the ulti-
mate leadership role in accordance with ultimate responsibility, with the support of
business managers rather than the reverse.
This chapter has addressed the impact of service organisation on teaching and
training. It is apparent that teaching and training must be grounded in research and
development. Actually, there is a need for centres of excellence where both research
and teaching can occur. Not every forensic centre needs to be a teaching hospital
with cutting-edge research, but every jurisdiction needs at least one, and those cen-
tres of excellence need to be networked internationally. This fundamental
14  Impact of Service Organisation on Teaching and Training 231

characteristic of medical services has to some extent been marginalised by the

attempted culture shift towards managerialised health services. All forensic mental
health services need to maintain a continuous culture of learning so as to be open to
new developments. Journal clubs, case presentations, Balint groups, private reading,
external courses and international conferences are all necessary to achieve this. But
excelence in forensic mental health services can be guaged from published research
and in particular from the ability to peform randomised controlled trials and other
forms of continuous innovation leading to improvement of outcomes for patients
and the public.

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Evidence-Based Treatment in Forensic
Settings 15
Norbert Schalast, Conni Lebbing, and Birgit Völlm

15.1 Introduction

In the medical field, guidelines of good practice are meant to provide concise
­state-­of-­the-art information on treatment approaches for diseases and disorders, based
on empirical evidence and/or expert consensus. Where available such guidelines
should be based on the systematic review and meta-analysis of high-quality research
evidence on a particular topic. Proponents of guideline-based provision of care argue
that they improve quality of care by ensuring consistency and allowing individual
practitioners to keep abreast with the latest evidence in their field. Critics contend that
the strict following of guidelines undermines individual decision-making, deskills
practitioners and might lead to the needs of individual patients not being met.
Following guidelines is not mandatory; they are one out of many tools to improve
the quality of care and cannot replace individual clinical decision-making [1].
However, not following guidelines and hence best practice might lead to legal chal-
lenge if treatment is not successful or leads to harm, and the practitioner might have
to explain reasons for diversion from the available evidence.
In comparison with general medicine and psychiatry, forensic psychiatry is lag-
ging behind regarding the development of evidence-based treatment guidelines.
This clearly is the case in Europe, where only researchers and practitioners from a
minority of countries are involved in the professional debate on these issues. The
degree of standardization of treatment programmes within forensic settings varies
across European Union member states [2]. On the one hand, diverse standardized

N. Schalast · C. Lebbing
Institute of Forensic Psychiatry, University Duisburg-Essen, Essen, Germany
e-mail: norbert.schalast@uni-due.de
B. Völlm (*)
Department of Psychiatry and Applied Psychology, School of Medicine,
University of Nottingham, Nottingham, UK
e-mail: birgit.vollm@nottingham.ac.uk

© Springer International Publishing AG, part of Springer Nature 2018 239

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_15
240 N. Schalast et al.

and evidence-based treatments are available for a large variety of mental disorders
and offences, as is the case in Great Britain or the Netherlands. On the other hand,
there seems to be a lack of data for the psychological treatment reality in most
European forensic mental health institutions. The same heterogeneity seems to be
evident in the training of psychological and medical professionals. Most states do
not require staff of forensic mental health institutions to be especially trained for the
work with delinquent patients. Also, a shortage of suitable candidates for the work
with mentally disordered offenders (MDOs) may lead to the paraprofessional
implementation of psychotherapeutic interventions (ibid.).

15.2 Legal Issues

The therapeutic scope can be specified by the respective legislation of a state [3]. In
Germany and Austria, for example, the law allows for offenders with substance-­
related disorders to be treated in specialized facilities. The growing number of sub-
stance abusers in forensic settings (e.g. [4]) emphasizes the importance of specialized
treatment and concepts of relapse prevention to reduce recidivism in this group.
Nevertheless, some countries, e.g. the UK, specifically exclude individuals with
substance abuse disorders from compulsory psychiatric treatment. Similar variabil-
ity exists with regard to personality disorders. In addition, some countries require
decreased criminal responsibility as entry criterion for admission to a forensic insti-
tution, while others may admit fully responsible or even non-offending patients to
forensic care (see, e.g. [5]).
While scientific papers and conferences do reveal efforts to improve the quality
of treatment and care in forensic psychiatric institutions, Italy has closed down all
six remaining forensic inpatient hospitals, characterized as “seriously insuffi-
cient” by Barbui and Saraceno [6]. Whether the alternative small residential units
will be successful in aiding the recovery of their residents remains to be seen.
Economic and public pressure may limit their effectiveness. A parallel debate on
abolishing the concept of legal incapacity may indicate a singular way to handle
the challenging problem of treating mentally disturbed offenders in special insti-
tutions. Even more mentally ill offenders in the regular prison system may be a
consequence.

15.3 Relevant Concepts

The authors of this chapter do not have the authority to conceive general guidelines
of forensic treatment, but we aim to highlight concepts which, in our view, need to
be considered in a respective debate. One such concept is the risk–need–responsiv-
ity model (RNR; [7]), which has been a frame of reference for the development of
therapeutic programmes and assessment instruments over many years [8]. One may
add that this refers most notably to the Anglo-American part of the world. On the
European continent, educated forensic staff has prevailingly taken notice of the
15  Evidence-Based Treatment in Forensic Settings 241

RNR principles, though these have not always been translated into guiding princi-
ples of treatment.
The Risk principle of the RNR model requires practitioners to match the level of
programme intensity to the offender’s risk level (i.e. no expensive treatment for low-­
risk offenders, most intensive treatment for high-risk individuals). The Need prin-
ciple calls to target “criminogenic needs”, i.e. dynamic factors linked to the risk of
reoffending (like antisocial peers and attitudes, drug abuse, impulsiveness); treat-
ment providers are discouraged from focusing on non-criminogenic needs, such as
discontent, low achievement motivation, anxiety or other symptoms of mental dis-
order. The Responsivity principle refers to the matching of treatment style and mode
to the offender’s learning style and abilities. According to Andrews and Bonta [9],
interventions in accordance with the three principles are associated with significant
risk reduction, while others are not or may even cause harm.
While the relevance of the three (RNR) principles is widely accepted, the deliv-
ery of RNR-based treatment programmes in the correctional system is criticized.
According to Gannon and Ward [10], there are three reasons for the popularity of
RNR: (1) participation in RNR programmes may reduce recidivism. (2) The RNR
principles are simple and can be implemented to large groups of offenders within
highly structured cost-effective treatment programmes, frequently delivered by less
qualified staff. (3) The focus on risk reduction complies with the priority of security
issues in the correctional system. The authors criticize the stringent manualization
of treatment programmes, along with a risk of overreliance of therapists on a spe-
cific manual, thereby disregarding patients’ needs and focusing too much on public
safety measures instead of therapeutic goals [10].
The good lives model (GLM) has been suggested as an alternative or rather an
extension to the RNR model. It stresses the similarity between the needs of offend-
ing and non-offending individuals and the crucial difficulties of offenders to fulfil
their normal primary needs or goods in a socially compatible way. According to the
model, there are 11 areas of primary goods: life (healthy living and functioning),
knowledge, excellence in play (recreational activities), excellence in work (includ-
ing mastery experiences), excellence in agency (autonomy, self-directedness), inner
peace, relatedness (including intimate, romantic and family relationships), commu-
nity (connectedness to wider social groups), spirituality, pleasure (feeling good in
the here and now) and creativity. The GLM approach focuses on individual needs
and the increase of the patients’ ability to live a fulfilling, satisfactory life. In con-
trast to RNR, GLM considers the fulfilment of basic needs to be sufficient to (natu-
rally) reduce criminogenic needs [11]. However, Andrews et al. [12] argue that the
specific points and apparent changes suggested by the GLM are already covered by
the RNR concept. They do, however, content that the strength-based focus of the
GLM may be a positive addition.
There is little evidence clarifying which role the GLM plays in the practice of
forensic treatments in Europe. In Germany, two papers have recently informed
about the model in a major forensic psychiatric journal [13, 14]. There is consider-
able interest in the approach, reviving an individualized psychotherapy approach
within forensic settings. This receptivity may have its origin in the strong
242 N. Schalast et al.

psychodynamic and psychoanalytic traditions in countries like Austria, France and

Germany [15].
Specific treatment programmes discussed in the literature may be differentiated
regarding their closeness to the RNR and the GLM concept. RNR-oriented pro-
grammes are generally cognitive behavioural by nature and highly structured and
manualized and have a strong focus on risk factors and on later risk management.
There are programmes for individual, group and aftercare outpatient settings. In the
UK, multiple highly structured treatments are available and accredited [16]. Specific
training may be required to deliver programmes, and ideally programme implemen-
tation and delivery will be monitored on an ongoing basis and staff supervised. The
highly structured nature of these programmes, alongside their manualization, means
that training may be specific to the programme, while no degree in a particular sub-
ject (such as psychology) or general psychotherapeutic education may be required
to become a treatment programme facilitator.

15.4 Programmes in Practice

There is a multitude of treatment programmes claiming to fulfil RNR criteria. Among

the empirically well-evaluated programmes are the Reasoning and Rehabilitation
(R&R) programme and the sex offender treatment programme [17]. The R&R pro-
gramme, introcuded by Ross, Fabioano and Ross in 1974 [18, 19] targets cognitive
processes such as reasoning, atributions, self-evaluation, expectations, appraisal of
the world and values, in order to enhance the client’s competencies to cope with
everyday problems and challenging situations. The effectiveness of the R&R
approach has been evaluated in Canada, the USA, the UK and Sweden, and it has
been found to achieve a moderate but significant reduction of reoffending rates
[20, 21]. For example, in the study of Tong and Farrington, the relative risk of reoff-
ending was reduced by 14% in the first year after discharge from the institution.
However, it was pointed out that there is limited evidence regarding the effectiveness
of cognitive skills programmes like R&R with mentally disordered offenders. In a
randomized controlled trial, Cullen et al. [22] demonstrated that R&R completion
had a positive effect on patients with severe mental illness. But a high rate (50%) of
noncompletion presented a problem, discouraging too optimistic conclusions.
The sex offender treatment programme (SOTP) is an evidence-based group treat-
ment programme in forensic settings and was originally developed for the imple-
mentation in prisons in the UK [23]. SOTP was designed to address the sexual
offence and treat patients using cognitive behavioural techniques, in accordance
with the prevailing research on sexual offending. The programme has been adapted
to serve the needs of forensic psychiatric patients as well as subgroups of offenders
(such as those with intellectual disabilities and, more recently, deniers) and has been
implemented in other European countries, such as Germany [24]. However, there
are numerous interventions targeting sexual offending, ranging from cognitive to
medical approaches (such as chemical castration). Prominently, the relapse preven-
tion approach, which was originally developed for drug abuse, is used and has been
15  Evidence-Based Treatment in Forensic Settings 243

adapted to reduce the risk of relapse. Schmucker [25] suggests complementing this
approach with the humanistic goals of the GLM, in order to generate a more posi-
tive therapeutic atmosphere. Sex offender interventions have been subject to a great
number of effectiveness studies and numerous meta-analyses summarizing their
findings with some concluding that the effect of these programmes is absent or
minimal and others producing more promising findings. The most recent meta-­
analysis of interventions [26], reviewing 11 other meta-analyses, concluded that sex
offender treatment showed promise in reducing reoffending with effect size of about
10–20% and larger effects for treatment for adolescents compared to adults, surgical
castration/hormonal medication compared to psychological interventions and com-
munity compared to institutional treatments.
The ongoing research activity surrounding sex offender interventions has allowed
adjustments in line with research findings. For example, the prison SOTP in the UK
has recently de-emphasized the focus on victim empathy after a number of studies
have found that its inclusion in the programme is not only inefficient but potentially
harmful [27]. Instead Mann et al. [28] identified the following criminogenic needs
as targets for intervention: sexual preoccupation, deviant sexual interest, offence-­
supportive attitudes, emotional congruence with children, lack of intimacy, lifestyle
impulsivity, poor cognitive problem-solving, resistance to rules, grievance and hos-
tility and negative social influences.
A variety of violent offender treatment programmes (or similar, e.g. [29, 30])
have been implemented and proofed useful, though the empirical evidence regard-
ing these programmes is somewhat more limited than for sex offender programmes
([31]; for a recent review see [32]).
Programmes more related to the GLM approach put more weight on the thera-
peutic relationship as an effective factor of treatment and are less rigidly manualized
and less focused on risk factors. They do show more overlap with general psycho-
logical treatments [10]. According to the literature, RNR-based and cognitive
behavioural programmes preponderate clearly in correctional and forensic settings,
but in practice, general psychotherapeutic and even psychodynamic approaches still
play a significant role. These approaches generally comply with the GLM demand
to give interpersonal factors special attention.
A number of psychotherapeutic approaches, usually delivered on a 1:1 basis, but
sometimes group based, or a combination of both, are in use in forensic settings
which will be briefly described here, though it is important to note that there is virtu-
ally no evidence for their effectiveness in forensic settings and that, mostly, they
have not been adapted specifically for use in such settings.
Psychodynamic therapy is characterized by its individual patient focus and in-­
depth search of the biographic and emotional roots of maladaptation and behav-
ioural problems. The general efficacy of psychodynamic therapy approaches has
been demonstrated empirically [33, 34]. Traditionally, psychodynamic therapy in
forensic settings has had its place in Austria, Germany, France and the UK, though
less so recently in the latter [15], in addition to other therapeutic approaches.
Transference-focused psychotherapy (TFP) constitutes a newer form of psycho-
analytic therapy, designed to deal with severely personality distorted patients and to
244 N. Schalast et al.

accommodate current directions in psychotherapy research. There are specific rec-

ommendations for the use of TFP in forensic settings available, such as dealing with
the dual relationship problem (emerging from two sets of norms associated with
community protection versus fostering the patients’ well-being) and its possible
effect on the therapeutic process [35, 36].
Schema-oriented psychotherapy (SOPT) is an adaption of Young’s schema ther-
apy [37] to suit the needs of (forensic) patients with personality disorders. It is
composed of a three-step programme, which is delivered in a group setting though
it is sometimes used individually or in a group and individually in parallel.
Ultimately, the goal of this therapy is to modify maladaptive coping strategies, in
terms of working through identified “schemata” of thinking and responding by use
of techniques such as role play and chair dialogue. In a recent study by Elsner and
König [38], forensic patients who participated in a SOPT programme showed more
improvement regarding self- and staff assessment and objective measures (like
progress in the institution’s phased plan) than a matched control group. Notably, the
use of this approach in the treatment of patients with high psychopathy scores, a
group of offenders very difficult to reach therapeutically, is also currently explored.
As a large group among violent and sex offenders have experienced severe defi-
cits of early attachment, attachment theory has also become an inspiration to
offender treatment [39]. Fostering clients’ capacity for “mentalization” [40] is pro-
posed to improve their behavioural control and affect regulation as well as strengthen
their competence to manage everyday problems and reach a more fulfilling life.
Last but not the least, dialectical behaviour therapy (DBT), as introduced by
Linehan et al. in 1991 [41], clearly fulfils the demands of the GLM concept. It is a
broad, evidence-based cognitive behavioural approach originally developed for the
treatment of (para)suicidal female patients with borderline personality disorder. It
has been adapted for the use in forensic settings [42]. DBT is implemented in foren-
sic settings, especially in Anglo-Saxon countries [43], but has also been found effi-
cacious in outpatient forensic treatment of patients with a borderline personality
disorder in the Netherlands [44] and Germany [45].

15.5 Discussion

Empirical evidence may hardly give last answers to the question which treatment
approaches should be considered state of the art in forensic and correctional set-
tings, certainly not in relation to a specific patient. Empirical evidence demonstrates
that, when comparing two groups treated in different ways, significantly more
patients have a positive outcome in one of the groups. But there is commonly a
rather small share of clients whose adjusting may be specifically attributed to a
specific intervention. Psychosocial programmes, when rigorously, evaluated show
prevailingly, at most, small effects. We are still not close to answering questions like
“what works for whom, in what contexts, under what conditions, with regards to
what outcomes, and also why” [46, p. 2].
15  Evidence-Based Treatment in Forensic Settings 245

What also justifies some restraint is that studies evaluating model projects inter-
ventions instead of routine practice and rather small instead of large samples tend to
find larger effect sizes, as well as studies run by researchers affiliated to the pro-
gramme at stake (ibid.). It has also been stated that being able to benefit from a
standard treatment programme rather indicates a less severe rather than a severe and
complex disorder [47]. In addition, positive effects of a programme may not only
indicate a direct impact of the programme, like modifying directly clients’ attitudes.
Programme delivery may also have an indirect effect through positively affecting
staff–clients’ communication and the institution’s social climate (which would be a
most valuable effect!). All together, there is no single approach which may be
acknowledged “state of the art”, but these critical observations should not dismiss
the fact that there is support confirming the utility of concepts like RNR, GLM and
programmes based on their principles.

Take-Home Messages
Against the background outlined above, the following conclusions should be
considered when debating guidelines of treatment in forensic psychiatric
settings:

• Forensic and correctional treatment programmes should give special atten-

tion to dynamic risk factors related to clients’ recidivism; these factors
need to be focused on in treatment planning and implementation and in
aftercare.
• Clients’ individual needs and goals must be considered and acknowledged,
not least as this might motivate them to co-operate. One should not expect
offenders to reach a stable social adjustment just by training them to avoid
and control antisocial behaviour; positive “turning points” of life have
proven to be closely linked to consistent desistance from crime [48], pro-
viding rather strong confirmation for a “good lives approach” in working
with mentally disturbed offenders.
• Clients suffering from severe emotional instability may benefit from cog-
nitive behavioural interventions and treatments explicitly fostering their
skills to manage anxiety and anger, like DBT-F or schema therapy. Findings
from attachment research need to be considered, which may foster thera-
pists’ awareness of relationship issues [39].
• Inpatient secure treatment settings should be closely linked to aftercare
programmes providing support, coaching to cope with the challenges of
daily life and some degree of control.
• Medication was not a topic considered in this chapter, yet may be essential
in managing critical dispositions of behaviour, severe mental disorders and
addiction. General psychiatric guidelines are relevant in this regard.
246 N. Schalast et al.

Postscript: At present, Europe is struggling with a welter of problems. At times,

the European community seams closer to breaking apart than solving these
­problems. Whenever issues of forensic care are discussed in the (regional) public,
“security” is a primary focus. Debating standards of correctional and forensic
­psychiatric care is very low in the European political agenda.

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A European Perspective on Risk
Assessment Tools 16
Michiel de Vries Robbé and Vivienne de Vogel

16.1 Violence Risk Assessment

Accurately evaluating the likelihood of violent reoffending increases the knowledge

of professionals working in forensic practice; ensures the most justified treatment
efforts and risk management for the patient, client or offender; and ultimately enhances
the safety of society. For mental health professionals in (forensic) psychiatry, risk
assessment offers guidance for their treatment practice. Judicial authorities and proba-
tion workers utilize risk assessment in their risk management planning and release
decision-making (for an overview of different risk assessment tools, see Tables 16.1
and 16.2). However, formulating judgements regarding the possibility of future vio-
lent behaviour is a difficult task, which should be done with caution as the outcome of
the risk assessment may have major implications. Underestimating the level of vio-
lence risk could lead to an unjustified low intensity of risk management or wrongful
early release, which may present a missed opportunity for successful intervention,
may pose a danger to society in terms of potential new victims, may lead to rearrests
and financial burden for the judicial system and could be neglectful to the further
treatment needs of the patient. Overestimating one’s level of violence risk may prompt
clinicians and courts to impose unnecessary lengthy or intensive interventions, which
are costly for society in terms of financial burden and costly and unethical for the
patient in terms of loss of liberties and unjustified treatment intensity.
From clinical experience and empirical studies in the past century, it has become
clear that without the aid of risk assessment instruments, our best clinical judgement

M. de Vries Robbé (*)
Department of Child- and Adolescent Psychiatry, VU University Medical Center,
Amsterdam, The Netherlands
e-mail: mdevriesrobbe@outlook.com
V. de Vogel
Department of Research, Van der Hoeven Kliniek, Utrecht, The Netherlands
e-mail: VdeVogel@hoevenkliniek.nl

© Springer International Publishing AG, part of Springer Nature 2018 249

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_16
250 M. de Vries Robbé and V. de Vogel

Table 16.1  Actuarial risk assessment tools commonly used in Europe

Tool Reference Type of risk assessed
LSI-R/LS/CMI Andrews and Bonta [7]; General offending
Andrews et al. [8]
YLS/CMI Hoge and Andrews [9] Youth general offending
VRAG Harris et al. [10] General violence
COVR Monahan et al. [11] General violence
SORAG Quinsey et al. [12] Sexual violence
STATIC-99/ Hanson and Thornton [13, 14] Sexual
STATIC-2002 violence—historical
STABLE Fernandez et al. [15] Sexual
violence—dynamic
ACUTE Hanson and Harris [16] Sexual violence—acute

Table 16.2  SPJ risk assessment tools used in Europe

Tool Reference Type of risk assessed
HCR-20/ Webster et al. [23]; Douglas et al. [1] General violence
HCR-20V3
VRS Wong and Gordon [24] General violence
FAM/FAMV3 de Vogel et al. [25, 26] Female violence
SAPROF de Vogel et al. [25, 27] Protective factors for violence
DASA Ogloff and Daffern [28] Situational violence
START Webster et al. [29] Short-term violence
SVR-20 Boer et al. [30] Sexual violence
RSVP Hart et al. [31] Sexual violence
VRS-SO Wong et al. [32] Sexual violence
SARA Kropp et al. [33] Intimate partner violence
B-SAFER Kropp et al. [34] Intimate partner violence
PATRIARCH Kropp et al. [35] Honour-based violence
MLG Cook et al. [36] Group-based violence
VERA Pressman [37] Extremist violence
SAM Kropp et al. [38] Stalking
SRP MacKenzie et al. [39] Stalking
CARE Agar [40] Child abuse
SAMI Zapf [41] Suicide risk
S-RAMM Bouch and Marshall [42] Suicide risk
SAVRY Borum et al. [43] Youth violence
SAPROF-YV de Vries Robbé et al. [44] Protective factors for youth
violence
START:AV Viljoen et al. [45] Short-term youth violence
J-SOAP-II Prentky and Righthand [46] Youth sexual violence
EARL-20B/21G Augimeri et al. [47]; Levene et al. [48] Childhood violence for boys/
girls
16  A European Perspective on Risk Assessment Tools 251

may not always lead to an accurate estimate of the likelihood of violent recidivism
(for an overview of the evolution of risk assessment procedures, see, for example, [1]).
Regardless of the level of professional expertise and years of experience working
with patients and offenders, mental health workers and decision-makers are inevita-
bly at risk of cognitive distortions and misinterpreting important indicators that influ-
ence their judgement. The violence potential of those who seem difficult and
divergent could be overestimated, while for those who cooperate and appear to be
willing and understanding, the level of violence risk may be underestimated.
Although attitude and treatment alliance are valuable factors, other warning signs,
strengths and weaknesses should not be overlooked. For this reason, it is vital that
risk evaluations aid the assistance of empirically derived checklists. These checklists
should include the most prominent risk and protective factors that have emerged
from the literature as being related to violent behaviour and reoffending, such as
those presented in the risk assessment tools described below. Utilizing these tools to
guide the assessment process has become recognized as best practice in most
European countries. In their review of current directions in violence risk assessment,
Skeem and Monahan [2] describe a shift from the prediction of violence to the pre-
vention of violence (re)occurrence and state that group-based instruments are useful
for aiding the assessment of an individual’s risk and understanding its causes in order
to guide prevention. They conclude that risk assessment instruments should be cho-
sen based on an evaluation’s purpose (i.e. risk assessment vs. risk reduction).
This chapter aims to offer insight into the intended use of risk assessment tools in
clinical practice, as well as their potential for guiding treatment efforts and risk man-
agement planning. It should be noted that the focus in this chapter lies on violence risk
assessment. However, many of the described tools concern general life domains,
which are also valuable for the assessment of non-violent outcomes such as general
offending (e.g. LS/CMI). Different methods of violence risk assessment will be
explained, focusing predominantly on the widely used structured professional judge-
ment (SPJ) approach (e.g. [3]). The most commonly used risk assessment instruments
in Europe will be discussed, including tools for specific groups of patients. Distinct
attention will be paid to tools for the assessment of protective factors. Finally, a case
study will be described to demonstrate the assessment process, and some general rec-
ommendations will be given regarding the use of risk assessment in clinical practice.

16.2 Approaches to Risk Assessment

Two decades ago, most risk assessment in forensic psychiatric institutions was car-
ried out based on best clinical judgement of those in charge of the treatment, assess-
ment or decision-making. Research has since then shown that this unstructured
clinical judgement has several major limitations, such as the above-mentioned
proneness for cognitive distortions, the risk of ignoring potentially relevant factors,
the low interrater reliability, poor predictive validity and finally the lack of transpar-
ency of this method (e.g. [4]). Therefore, in the mid-1990s the use of standardized
risk assessment tools was recommended to increase the reliability and validity of
252 M. de Vries Robbé and V. de Vogel

the risk assessment. Knowledge on risk and protective factors that influence violent
reoffending has grown rapidly over the past 20 years. Many studies have been con-
ducted and reported on in the international literature, providing valuable insight into
the importance of specific risk and protective factors at group level. From this, risk
assessment tools have been developed for general violent behaviour; for more spe-
cific types of violence such as sexual violence, intimate partner violence and child
abuse; and for specific groups such as female offenders and juveniles. These tools
can be divided into tools following the actuarial approach and SPJ risk assessment
tools. These two methods will shortly be described below. For a more in-depth
description, see, for example, Douglas and Reeves [5]. Despite the general interna-
tional developments regarding different methods of evidence-based assessment,
risk assessment practice remains to vary greatly between countries and settings. For
example, clinical practice in some Southern and Eastern European countries appears
to still be based predominantly on the unstructured professional judgement
approach, while in other countries the use of actuarial tools is preferred within cer-
tain settings and the SPJ tools are preferred in other settings. In most Northern
European countries, the SPJ approach is seen as the most useful way to assess vio-
lence risk and inform treatment. Each of these methods of risk assessment has its
benefits and disadvantages; however, it has widely been acknowledged that assist-
ing the risk assessment process with an empirically based risk assessment tool
increases the reliability, validity and transparency of risk assessment practice in
clinical practice (see [2]). Thus, it is considered current best practice to employ a
form of structured risk assessment, which comprises factors that have emerged from
the empirical literature as being related to future offending behaviour.

16.2.1 Actuarial Risk Assessment

Seeking a more evidence-based risk assessment, researchers set out to collect all
available evidence regarding the group-level validity of many different risk factors
for specific types of violence. From this, actuarial tools have been constructed for
varying types of violence, based on the assumption that future violence risk can best
be predicted from an actuarial calculation of evidence-based risk factors. Risk
assessment tools following this approach include only items which have emerged
from empirical studies as having a significant relationship with offending behav-
iour. Conclusions from these tools simply represent the calculation of the total score
on all items according to a predetermined algorithm. Generally, this total score is
being viewed in the light of a pre-established reference group, for example, parolees
within a North American probation context. If a particular individual receives a
higher total score than a certain cut-off score for his reference group, the level of
risk is rated as ‘high’. There are many risk assessment tools which follow this
model, and their predictive validity is generally quite good at group level (see
Table  16.1 for an overview of commonly used actuarial tools in Europe). Well-­
known actuarial tools include intervention guidance tools (e.g. (Y)LS/CMI, based
on the risk-need-responsivity principles), tools for general violent behaviour (e.g.
16  A European Perspective on Risk Assessment Tools 253

VRAG) and tools for sexual violence (e.g. STATIC-99). For an overview and expla-
nations of different sexual offending risk assessment tools, see Hanson et al. [6].
The major advantage of actuarial tools is that they apply quite straightforward
coding guidelines and leave little room for clinical interpretation of the findings,
which makes them objective and transparent. The often mentioned downside of
actuarial tools is their assumption that all factors within these tools are universal for
the assessed population and equally important for every individual (thus always car-
rying the same weight in the final score). This leaves little room for an individual-
ized view of which factors are most important for the specific patient, nor does it
provide the possibility to include additional factors which may be vital for the indi-
vidual. Moreover, the use of reference groups complicates generalizability to other
samples, as each sample is likely to have its own cut-off points in terms of recidi-
vism likelihood, implying that reference groups ought to be available for a specific
patient population before these tools can reliably be applied. Perhaps the most
prominent disadvantage of many actuarial tools is that they include mostly static
historical variables, which do provide a useful baseline measurement of the level of
risk, but offer fewer guidelines for treatment interventions (see [17]). However,
there are exceptions such as the (Y)LS/CMI, the STABLE and the ACUTE, which
are (party) comprised of dynamic factors and do offer guidance to treatment and
risk management. Thus, actuarial tools are generally objective and useful in the
sense that they provide a valid baseline risk evaluation, which at group level shows
to be related to violent outcome. However, they are limited in their ability to apply
the assessment to the individual and interpret his or her unique combination of
(dynamic) factors in relation to violent behaviour within a specific context.

16.2.2 Structured Professional Judgement

In response to the poor reliability of unstructured clinical judgement and the criti-
cism regarding the limited clinical applicability of the actuarial risk assessment
tools, a new generation of risk assessment instruments was developed: the struc-
tured professional judgement (SPJ) tools. SPJ can be regarded as the meeting point
between empirical knowledge and clinical experience. Violence risk assessment
tools following this approach generally comprise a checklist of factors which have
shown from empirical studies to be related to violent behaviour. These factors may
be historical or dynamic in nature. In fact, most SPJ tools include both static and
dynamic factors. With the SPJ tools, the assessor first rates all factors in the check-
list that are present and relevant for the assessed context, before making a well-­
informed final judgement regarding the likelihood of future violence risk. It is this
process of combining, integrating and weighing the factors to finally arrive at an
overall conclusion regarding the level of violence potential which is unique for the
SPJ approach. It implies that the decision-making process regarding the level of risk
could be different for each assessed individual and for each different context that an
individual is assessed for, depending on the importance of each factor for a specific
individual in the assessed context. The assessment procedure inspires the assessor
to seek (clusters of) factors which interact with one another and play a vital role for
254 M. de Vries Robbé and V. de Vogel

the assessed individual. For example, well-known clusters of factors that signifi-
cantly increase the risk of (sexual) violence are high levels of psychopathy in com-
bination with sexual deviance and the presence of a major mental illness combined
with substance abuse.
Following the full procedure of SPJ risk assessment, the assessor is prompted to
consider what factors have together led to previous violent behaviour in the indi-
vidual case, an exercise named risk formulation. One theory of what moves people
to specific behaviour is that every individual seeks to reach certain goals in life, but
offenders have tried to accomplish these by means of antisocial behaviour. Gaining
insight into which factors have played an important role in the pathways to violence
in the past aids in the clear formulation of hypotheses about the future. Once all the
important factors have been assessed and past violence has been analysed, the asses-
sor can start thinking about possible risk scenarios for the assessed: future violence
risk scenarios which could potentially take place. In other words, a narrative of what
we are afraid might happen. Issues to consider in formulating risk scenarios are
what type of violence could take place, how soon could this happen, who could be
the victim, how severe would it be, what factors would enhance the likelihood of
this violence scenario or what factors could decrease its likelihood. Creating these
narratives gives us a much clearer picture of what it really is we might be worried
about and, thus, what we need to prevent from happening. Often multiple risk sce-
narios can be formulated from an assessment. For example, it may be hypothesized
that a scenario of intimate partner violence could unfold when a patient is being
assessed for first-time unsupervised leaves; however, an altogether different sce-
nario might be inpatient violence towards staff when the patient returns from his
unescorted leaves and might be under the influence of alcohol.

16.3 Risk-Focused SPJ Assessment Tools

Over the past two decades, numerous SPJ tools have been developed and imple-
mented in clinical practice around Europe and the world. The most well-known and
widely used SPJ tool is the Historical Clinical Risk Management-20 (HCR-20) and
its recent revision the HCR-20 Version 3 (HCR-20V3). Western European countries
have long been at the forefront of the risk assessment development as treatment in
these countries aims to be innovative and evidence-based. Over the past decade,
interest for implementing structured professional risk assessment tools has grown in
other European countries as well (for a guideline regarding adapting risk assess-
ment tools to new jurisdictions, see [18]). A large-scale international survey carried
out in 2014 examined different methods of violence risk assessment and the utility
of these methods as perceived by mental health care professionals from over 40 dif-
ferent countries [19]. This study concluded that violence risk assessment is a global
phenomenon and the HCR-20 was found to be the most widely used tool in the
world for violence risk assessment. The HCR-20 has been translated in many lan-
guages. The tool is commonly used in clinical practice in most Western European
countries and has more recently also been adopted in countries such as Greece,
16  A European Perspective on Risk Assessment Tools 255

Table 16.3 HCR-20V3 item ratings for John for the context of inpatient treatment with unsuper-
vised leaves
Historical scale—history of problems with: Presence Relevance
H1 Violence Yes High
H2 Other antisocial behaviours Possible Low
H3 Relationships Yes High
H4 Employment Yes Moderate
H5 Substance use Yes High
H6 Major mental disorder Yes High
H7 Personality disorder No Low
H8 Traumatic experiences Possible Low
H9 Violent attitudes Possible Low
H10 Treatment or supervision response Yes High
Clinical scale—recent problems with: Presence Relevance
C1 Insight Possible High
C2 Violent ideation or intent No Low
C3 Symptoms of major mental disorder Possible High
C4 Instability Possible High
C5 Treatment or supervision response No Low
Risk management scale—future problems with: Presence Relevance
R1 Professional services and plans Possible High
R2 Living situation No Low
R3 Personal support Possible Moderate
R4 Treatment or supervision response Possible High
R5 Stress/coping Yes High
Note: The sub-items of the HCR-20V3 were also coded but are not all shown in this table
Coding of the HCR-20V3 items. Presence: No not present, Partly present to some extent, Yes
present
Coding of the Relevance for the assessed context: Low not relevant, Moderate relevant to some
extent, High highly relevant

Turkey and Romania. Although cultures and behaviours may differ from country to
country, it is generally being assumed that the HCR-20 risk factors are formulated
broad enough to be valid in most societies. The tool contains 20 empirically based
risk factors, half of which are historical and the other half dynamic factors (for an
overview of the HCR-20V3 factors, see Table 16.3). The dynamic factors consist of
five clinical factors that concern the recent past and five risk management factors
that are to be rated about the near future. Items are rated on a 3-point scale, indicat-
ing the extent to which each risk factor is present. In doing so, the tool gives an
overview of the factors that are present and relevant from the past and the present
and provides a guideline for treatment and risk management planning. The HCR-20
tools have together been evaluated in over 250 empirical studies and have been
found to demonstrate good interrater reliability and good predictive validity for
future violent behaviour in many different samples around the world (see [20]).
Moreover, especially HCR-20V3 offers valuable guidance to treatment and risk man-
agement in forensic clinical practice.
256 M. de Vries Robbé and V. de Vogel

Following the HCR-20 example, many other tools have now been developed
which also apply the SPJ approach for a wide range of outcomes, including tools for
general violence, sexual violence, domestic violence, honour-based violence,
group-based violence, extremist violence, stalking, child abuse and suicide risk (see
Table 16.2 for an overview of available SPJ tools in Europe). There are also SPJ
tools that look at a more short-term timeframe, such as the DASA (imminent risk)
and the START (weeks to months; which looks at multiple adverse outcomes like
violence, substance misuse and self-harm). In addition to the abundance in tools for
adults, there is also a range of tools specifically for juveniles, including the com-
monly used SAVRY, and even risk assessment tools for children. Finally, there has
been considerable debate about the applicability of general risk assessment tools for
female populations (see [21]). For this reason, an additional manual has been devel-
oped in order to also include female-specific risk factors: the Female Additional
Manual (FAM), which is intended to be used in addition to the HCR-20 or HCR-­
20V3 when assessing violence risk for females. Although it has been argued that
there is little difference between various risk assessment tools in regard to their
ability to predict violent reoffending [2], it has generally been acknowledged that
tools for specific populations provide better predictive validities [22].

16.4 Protective Factors

Virtually all actuarial and SPJ tools focus exclusively on risk factors for some form
of violence while ignoring the incorporation of strengths or protective factors.
Theoretically, all SPJ tools should pay attention to situational and personal protec-
tive factors when a final judgement is made. However, the positive factors that are
implicitly being weighed and integrated in the formulation of risk scenarios and
final judgements often are not empirically based and rather concern factors which
are deemed useful for an individual case from the assessor’s clinical judgement.
Although it is now increasingly being recognized that explicitly considering protec-
tive factors is as much part of risk assessment as considering risk factors, this part
of the assessment process has long been underappreciated and understudied [49].
Very few risk assessment tools do also include a focus on strengths or protective
factors. Some of the exceptions are the START, START:AV and the SAVRY. In the
START tools for short-term evaluations, the assessor is requested to rate every
domain simultaneously on a risk scale as well as on a strength scale, implying that
every risk domain has a negative and a positive potential. This way of thinking
inspires clinicians to also focus on observing positive development. The SAVRY
risk assessment tool for juveniles contains six distinct protective factors which are
to be rated regarding the recent past. Although the number of protective factors is
relatively limited and the factors are rated as either present or absent, they too pro-
vide the notion of the relevance of strength-based factors.
In working with the HCR-20 in clinical practice, this phenomenon of the unstruc-
tured inclusion of protective factors while formulating final conclusions from the
assessment was recognized as a major shortcoming of the otherwise structured and
16  A European Perspective on Risk Assessment Tools 257

Table 16.4  SAPROF item ratings for John for the context of inpatient treatment with unsuper-
vised leaves
Internal items Score Key Goal
1 Intelligence 1 □
2 Secure attachment in childhood 2 □
3 Empathy 1 □ □
4 Coping 1 □ ✓
5 Self-control 1− □ ✓
Motivational items
6 Work 2 ✓ □
7 Leisure activities 2 □ □
8 Financial management 2 □ □
9 Motivation for treatment 1+ □ ✓
10 Attitudes towards authority 1 □ □
11 Life goals 0 □ □
12 Medication 1 ✓ □
External items
13 Network 1 □ ✓
14 Intimate relationship 0 □ □
15 Professional care 2 ✓ □
16 Living circumstances 2 □ □
17 External control 2 ✓ □
Note: Coding of the SAPROF items. Presence:  0  =  not present; 1  =  present to some extent;
2 = present
Key factor: item is considered essential for the prevention of violent behaviour in the assessed
context
Goal factor: item is considered important as a treatment goal as improvement on this item may
have a protective effect

empirically based SPJ assessment process. For this reason efforts were made to
develop an evidence-based structured professional judgement tool specifically for
the assessment of protective factors for violence risk, which could serve as an addi-
tional manual to existing risk-focused assessment tools. Based on literature reviews
and experience from clinical practice, a tool was developed specifically for assess-
ing protective factors: the Structured Assessment of Protective Factors for violence
risk (SAPROF; [25, 27]). The SAPROF was intended to be used in addition to risk-­
focused SPJ assessment tools, such as the HCR-20V3 or VRS, in order to include an
empirically based measure of protective factors for violence risk in the assessment
process, aiming to better inform the final conclusions drawn from the assessment.
The tool is also being used in combination with actuarial tools such as the STABLE
or the LS/CMI. The SAPROF is now available in 15 different languages and has
been implemented in clinical practice in many European countries and abroad,
including The Netherlands, United Kingdom, Spain, Cyprus and Poland.
The SAPROF consists of 17 protective factors which are predominantly dynamic
in nature and are to be rated for the near future, similar to the HCR-20 risk manage-
ment items (for an overview of the SAPROF factors, see Table 16.4). As factors are
258 M. de Vries Robbé and V. de Vogel

rated for the future (on a 7-point scale), they are inherently context dependent, mean-
ing that ratings may vary when the context changes. For example, a patient with a
history of substance-related violence (risk factor) who is allowed to leave a psychiat-
ric hospital under supervision may have good self-control (protective factor) in this
context and not relapse into substance use while being escorted. However, if the con-
text changes to unsupervised leaves to the community, the individual’s self-control
may be assessed less optimistic. By applying the tool in this manner, protective factor
assessment can be used to guide treatment adjustment and risk management decision-
making. Moreover, the process of risk assessment becomes more individualized
through the marking of the most salient factors for each individual, either as key factor
that offers significant protection for the individual or as goal factor that holds promise
for improvement during treatment. Through this process of highlighting the vital fac-
tors for the individual, the risk assessment offers more personal guidance for treat-
ment. The assessment of risk factors (with a risk-­focused tool, such as the HCR-20)
and of protective factors (with a strength-focused tool, such as the SAPROF) is inte-
grated within the risk assessment, and conclusions drawn from the assessment (risk
scenarios, final judgements) should be based on the whole picture of positive and
negative factors together. Research results with the SAPROF demonstrate good inter-
rater reliability and good predictive validity for desistance from violence. Moreover,
several studies have found evidence for incremental predictive validity of the SAPROF
protective factors over the HCR-20 risk factors, indicating that both tools complement
each other and together offer a more valid and well-balanced risk assessment (see
[50]). Currently, additional manuals to the SAPROF are being developed that contain
additional protective factors that are of particular relevance to desistance for specific
populations, such as sexual offenders, individuals with intellectual disabilities, inpa-
tients in intensive care settings and possibly females. Lastly, given the fact that juve-
nile behaviour is highly changeable and influenceable, in part through interventions,
it seems especially promising to encourage positive development of strengths for
young people. Therefore, a SAPROF—Youth Version (SAPROF-YV; [44]) was
developed, based on literature regarding juvenile desistance. The SAPROF-YV is
intended to be used alongside risk-focused assessment tools for juveniles, such as the
SAVRY or the YLS/CMI. It includes items such as school, future orientation, peer and
family support as well as different items which together comprise the resilience scale
(social competence, coping, self-control and perseverance).

16.5 Case Example

John is a 32-year-old man, convicted for attempted manslaughter and sentenced to

18  months in prison and mandatory inpatient treatment at a forensic psychiatric
hospital. John has had a reasonably good childhood with loving parents and one
older brother. However, he is teased at school for his clumsiness, which causes him
to be a loner in early childhood. At age 16, he becomes more social and starts hang-
ing out with a group of drug-using peers. On one occasion he is arrested for shoplift-
ing. After finishing high school, John finds a job at a bakery. From age 22 onwards,
16  A European Perspective on Risk Assessment Tools 259

he starts to become more and more withdrawn and gradually becomes increasingly
convinced that evil forces are out to get him. In order to calm himself down and
forget about his problems, he starts drinking and using drugs excessively. When he
drinks, he tends to become less timid; however, his suspicious thoughts remain,
causing him to easily feel threatened by relatively harmless social interactions. His
behaviour becomes increasingly aggressive when under the influence of alcohol and
drugs. He seeks help but voluntary outpatient substance abuse treatment attempts
fail. Multiple times he gets involved in bar fights, for which he is arrested and con-
victed twice. After threatening one of his co-workers, he loses his job at the bakery.
People become increasingly afraid of him and he becomes estranged from his
friends and family. At age 27 he eventually commits the index offence. Under the
influence of excessive amounts of alcohol and drugs, he severely assaults another
man in a bar fight, after the man makes a seemingly harmless joke about his drug
use, and John becomes convinced the man is part of an evil plot against him. The
victim survives the incident, but John is convicted for attempted manslaughter. In
prison he appears to have bizarre and paranoid thoughts about people who are after
him. After an in-depth evaluation by a psychologist and a psychiatrist, he is diag-
nosed with paranoid schizophrenia and substance dependency.
After his prison sentence, John is admitted to a forensic psychiatric hospital. His
mandatory treatment sentence is imposed for indefinite time and will continue for
as long as deemed necessary by the courts, to ensure a safe return to the community.
Every year John’s treatment is evaluated in order to assess his treatment progress
and the necessity for further intervention. The aim is to gradually and safely reinte-
grate John back into society. After initially resisting interference by the treatment
team, he starts to become more aware of the necessity for him to change his attitude
and is willing to accept antipsychotic medication. Although his paranoid thoughts
remain present to some degree, his behaviour appears much less influenced by sus-
picions. He starts working in the hospital kitchen and takes classes in order to gain
certificates to become a confectionery baker, which would significantly increase his
likelihood of finding a job in the community. He often plays his guitar and is per-
suaded by the music teacher to join the hospital music band. Although his mood
fluctuates, overall he has a gloomy attitude. He remains somewhat ambivalent
towards his treatment team. However, usually he attends his meetings with the psy-
chiatrist and follows all agreements. He takes part in a psychoeducation group and
a substance abuse prevention group. Given his apparent progress, he is granted
supervised leaves to the community, during which he always behaves appropriately.
During the second year of his treatment, John keeps developing well. He remains
adherent to his antipsychotic medication and seems motivated to stay on the right
track. He feels supported by the relationship with his parents and brother, which is
gradually being restored. He continues to work in the hospital kitchen and finishes
his confectionery certificate. Although he has limited financial means, he manages
his finances appropriately. His behaviour is calm; since the start of his treatment,
there have not been any aggressive incidents. John finds it difficult to face his vio-
lent past and the pain he has caused others. He does not foresee any possibility of
becoming violent again. Occasionally, he does however discuss his urge to drink
260 M. de Vries Robbé and V. de Vogel

alcohol when on leave. One time he attempts to walk into a bar but is called back by
the supervising staff member. He plays down the incident and claims he was just
trying to find a bathroom. In order to be able to find a job in the community and
make the next step in his reintegration process, the treatment team proposes to grant
John unsupervised leaves outside the hospital. For this reason, a risk assessment is
carried out for the context of unsupervised leaves.

16.5.1 John’s Assessment

Risk factors: Tables 16.3 and 16.4 show the risk factors (HCR-20V3) and protective
factors (SAPROF) that have been assessed by the treatment team. John’s historical
risk factors show quite a problematic background, with major issues on different
domains, such as past violence, relationship problems, employment difficulties,
substance misuse, his paranoid schizophrenia and failed treatment attempts. The
recent past shows a more positive picture, with still some problems with insight into
his disorder and violence potential, symptoms of paranoia which remain present to
some extent despite the medication and affective instability as well as some impul-
sive behaviour. Regarding the anticipated problems for the unsupervised leave con-
text, some problems are foreseen regarding the reduced intensity of supervision
given that the treatment team will not be by his side at all times and he may get
tempted to use alcohol or drugs again. His response to treatment and supervision in
the new context with increased freedom may also be more problematic. The limited
personal support is still an issue as well. In addition, the challenges of this new treat-
ment phase are anticipated to be quite stressful for John, since he now has to start
solving problems in the community on his own and faces challenges, such as finding
a paid job and leisure-time activities in the community.
Protective factors: Looking at the protective factors, the assessment shows his
average intelligence and secure attachment in childhood. All dynamic items are rated
for the future context of unsupervised leaves. Empathy for potential victims, coping
with difficulties he may encounter and self-control are present to some extent.
However, his self-control regarding substance use may be tested when passing res-
taurants and bars in the community unaccompanied by a staff member. Work is antic-
ipated to remain a strong point for John, although transferring to a workplace outside
the hospital may prove challenging. He still plays in the hospital band and it is antici-
pated he will keep managing his finances well. He will likely remain fairly motivated
for treatment and adhere to the general agreements, although his ambivalence might
become more prominent again with the increased freedom and temptations. It is
anticipated he will remain medication adherent. The medication may not be fully
effective to reduce all psychotic symptoms; nevertheless, it is considered a vital pro-
tective factor for John. Although his social network is small and the reconnection
with his family is quite recent, he does feel supported by them. He does not have any
clear life goals nor is he involved in an intimate relationship. The professional care
from the treatment team will remain intensive, he still lives in the hospital, and the
court order of mandated treatment will remain in place. This means the treatment
team can intervene at any moment when warning signs show. These external factors
16  A European Perspective on Risk Assessment Tools 261

are seen as key protective factors for John during the unsupervised leaves. For the
coming 6–12  months, further improvement of his coping skills, strengthening his
self-control, motivating him for continuation of treatment and expanding his social
support network are seen as the most prominent goals for treatment.
Final risk judgement and conclusions: Viewing the protection from John’s inter-
nal, motivational and external factors together with the historical and dynamic risk
factors, for the unsupervised leave context, the level of protection available to John is
judged as moderate–high. Next, the risk of violent behaviour during unsupervised
leaves is judged as moderate, although the risk of serious physical harm or imminent
violence is judged as low–moderate. In terms of violence scenarios, the main worry
the treatment team has is that John might be tempted to use alcohol again, which could
lead to loss of self-control and potentially behaving violently towards others in a bar,
or towards staff upon return to the hospital when under the influence of alcohol.
However, it is anticipated that severe substance abuse will likely not happen quickly
and a build-up of John’s temptation to use alcohol is likely to be noticed by the treat-
ment team. Moreover, his current functioning is quite stable, the medication has
reduced his paranoid thinking significantly, he is motivated to do well, and his leaves
outside the hospital are only during the day and will be discussed and prepared quite
thoroughly. Therefore, it is anticipated that even when he does drink he will likely not
become violent right away and his behaviour will be less extreme than before. The
results from the risk assessment are written down in a report, which becomes part of
the larger treatment and risk management plan that will support the court proposal for
officially granting John unsupervised leaves to the community.

16.6 Recommendations for Clinical Practice

Based on current best practice, several recommendations can be made regarding the
practical use of risk assessment. First of all, it should carefully be considered which
risk assessment tools should be used in order to guide the assessment. The tool
should be a good fit in terms of demographics (age, gender, psychopathology, etc.),
type of offending behaviour, timeframe for the evaluation, type of factors (static/
dynamic, risk/protection) and aims of the assessment (establishing risk level, inform-
ing treatment goals, etc.). It is essential to use risk assessment tools that match with
the individual case and provide the intended outcomes. Before using risk assessment
tools, one should attend training in how to use the tools properly. This also includes
booster training or regular consultation with colleagues, discussing general scoring
guidelines or specific ratings of a particularly difficult case. In addition, assessors
should always use the tool’s manual when rating a case. Without reading the scoring
guidelines in the manual, it is possible that assessors start drifting away from the
actual coding rules as described and slowly create their own interpretation of a factor
or concept. In order to retain reliable risk assessment ratings, proper training and use
of the scoring manual are essential. Keeping up with the literature regarding specific
types of violence is also recommended, to ensure that the assessor is informed by the
latest scientific knowledge. This also includes findings on base rates for specific
types of recidivism among specific types of offenders.
262 M. de Vries Robbé and V. de Vogel

An assessment can only be as reliable as the information that is used to inform the
evaluation. Thus, extensive and preferably verifiable information is key for a good risk
assessment. Ideally, information from multiple sources is used, such as self-report,
information from family, friends, employers, sports coaches, and other network mem-
bers. Treatment reports generally provide a rich source of information, as well as
previous court reports and case notes regarding past and current functioning. In order
to be able to make an accurate description regarding the recent past, formulate reliable
expectancies regarding the near future, generate recommendations for interventions
and measure change over time reliably; sufficient dynamic information is essential.
This means in-depth information needs to be available regarding the recent past.
A further recommendation concerns the use of multiple raters. Research has shown
that assessments carried out by different assessors together provide better predictive
validities (see [51]). Preferably these different assessors are from different disciplines,
such as treatment supervisors, ward staff and diagnosticians or researchers. Each
assessor generally has their own insights and information regarding the individual,
which influence their ratings of the risk and protective factors. By including multiple
assessors, information from different sources is brought together, providing a well-
informed and balanced assessment process. Team assessments could either be done
individually first by each assessor and then be discussed in a consensus meeting, to
arrive at an agreed rating for each factor, or if this is too much preparation, the assess-
ment could also be done directly in consensus in a team evaluation meeting. Besides
providing more reliable and valid ratings, team assessments also have the advantage
of providing a constant feedback and training loop as different assessors will correct
each other when drift from the coding instructions occurs. Perhaps most importantly,
having different disciplines take part in the assessment process ensures that all treat-
ment providers are on the same page regarding their views on violence risk and the
important risk and protective factors that should be targeted in treatment. This makes
it much easier to agree on treatment goals and evaluate treatment progress as a team.
Regarding the actual assessment, as stated before, it is highly recommended to
explicitly include both risks and strengths in the assessment. Focusing on protective
factors as well provides a more balanced and well-rounded view of the individual’s
current functioning, their weaknesses and their strengths, as well as potential protec-
tive factors that could be developed over the course of treatment. Having this two-
sided view on risk assessment inspires clinicians in their treatment efforts and offers
hope to patients in terms of potential positive changes. Generally, it is advisable to
write a report after each risk assessment, describing the main findings from the
assessment in a coherent narrative. It is recommended to not use numbers or actual
ratings in this report, but to be descriptive instead. The most relevant risk and protec-
tive factors for the individual in the assessed context should be described, as well as
the most likely risk scenarios and possible treatment goals. When discussing the
results from the assessment with the patient, it may be helpful to share the written
report with the patient. In communicating with the patient regarding potential risk of
harmful behaviour, it proves valuable to also discuss the positive factors. Even when
not many protective factors are in place yet, discussing the possibility of developing
these factors may inspire treatment motivation and enhance treatment alliance.
Finally, risk assessment should inform risk management and guide treatment
interventions [52]. Thus, risk assessment should not be viewed as a snapshot
16  A European Perspective on Risk Assessment Tools 263

evaluation of the likelihood of violence risk but instead should be used as a treat-
ment tool that offers insight and guidance regarding the most promising treatment
approach for the individual and the feasibility of specific treatment and risk man-
agement plans. In this regard, it may be useful in some cases to rate the future items
of the assessment for different situations or contexts simultaneously. This way it
will likely become quite clear whether a newly proposed step in treatment (e.g.
leaves outside the hospital) is feasible or whether perhaps it is still too risky to
enter this new treatment phase. Also, it could be contemplated to make an addi-
tional rating for the hypothetical situation “what if the patient were to be discharged
today”. The ratings for this hypothetical discharge context could be compared to
the ratings for the present context, which could be helpful in convincing the courts
of the necessity of further treatment, or perhaps if the results turn out more posi-
tive, it may be an eye-opener regarding the feasibility of discharge. In addition,
repeated assessments should be seen as treatment evaluations that can monitor an
individual’s progress, which offers additional potential for communication with
third parties such as the court. Moreover, it offers the potential to adjust interven-
tions along the way and evaluate the effectiveness of specific interventions. Thus,
it is highly recommended to carry out repeated assessments regularly, at least every
6–12 months or when the context changes. If more dynamic tools are used or the
assessment concerns younger individuals, these reassessment timeframes may
even be much shorter.
One last remark regarding the applicability of risk assessment is that risk assess-
ment tools should be considered helpful aids to map out an individual’s unique
combination of risk and protective factors that may influence their future (violent)
behaviour. Although they have proven to be reliable and valid, these tools do not
provide the holy grail of certainty regarding an individual’s future behaviour.
Results from the assessment should always be viewed in light of the particular indi-
vidual, context and circumstances. Predicting human behaviour is extremely diffi-
cult. Risk assessment may be able to guide us through this process and provide
well-informed advice regarding our judgement of the likelihood of future violent
behaviour, no more, no less.

Take-Home Messages
• Risk assessment improves our knowledge about an individual; it does not
provide certainty.
• The most applicable assessment tool to use depends on the individual
being assessed, the type of anticipated violence and the scope of the
assessment.
• Carefully considering the context is of vital importance for risk
assessment.
• Risk assessment should inform risk management and guide treatment
interventions.
• Comprehensive risk assessment explicitly includes both risk factors and
protective factors.
264 M. de Vries Robbé and V. de Vogel

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Prioritizing Research in Forensic
Psychiatry: A European Perspective 17
Florence Thibaut and Thierry Pham

17.1 Introduction

Forensic psychiatry differs between European countries due to different historical

backgrounds and to different legal and mental health-care systems. In fact, in
Europe, the legal tradition comes from two different main roots: the Roman-French
law (used in most European countries) as opposed to the Common law, which is
used in the United Kingdom and Ireland. The Anglo-Saxon law, as opposed to the
Roman-French law, (1) is less prescriptive and uses a more pragmatic approach
(laws are less detailed) which means that the judge has wider options (interpretation
is less limited as compared to the Roman-French law, where the codes state offenses
and lay down procedures and punishments); (2) emphasizes behaviors more than
psychological elements; and finally (3) does not consider the concept of responsibil-
ity as basic.
Yet, forensic psychiatry shares some common goals across European countries
such as:

–– Being at the interface of law and psychiatry

–– Giving evidence to courts
–– Providing treatment for mentally disordered offenders

F. Thibaut (*)
University Hospital Cochin (site Tarnier), University Sorbonne Paris Cité (Faculty of
Medicine Paris Descartes), INSERM U 894 (Centre Psychiatry and Neurosciences),
Paris, France
e-mail: florence.thibaut@aphp.fr
T. Pham
Forensic Psychology, UMons, Belgium
Centre de Recherche en Défense Sociale, Tournai, Belgium
e-mail: Thierry.PHAMHOANG@umons.ac.be; thierry.pham@crds.be

© Springer International Publishing AG, part of Springer Nature 2018 267

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_17
268 F. Thibaut and T. Pham

–– Working toward improving living conditions of mentally disordered offenders

–– Taking care of ethics and human rights

17.2 S
 everal Epidemiological Studies Were Conducted
in Europe

Salize and Dressing published on the website several reports (cited below) with the
support of European grants. These reports may be considered as state-of-the-art
surveys on the questions that need to be addressed by research programs in European
forensic patients.
In 2002, a first report was entitled “Placement and treatment of mentally disor-
dered offenders – Legislation and practice in the European Union (EU).” Report is
available at http://ec.europa.eu/health/ph projects/2002/promotion/fp promotion
2002 frep 15 en.pdf. [1]
Their main conclusions were the following: forensic psychiatric care varied sub-
stantially across Europe in terms of legal systems, frameworks, key concepts, ser-
vices, capacities, routine procedures, pathways to care, etc.
In this context of great heterogeneity among European countries, evaluation or
comparison between countries was seriously hampered. In addition, the outcomes
were not defined; indicators were not implemented; criteria for models of best prac-
tice did not exist; and under-provision with specialized services was common.
According to their report, harmonizing legal frameworks or basic standards for
forensic care across the EU seems hard to achieve. More than 10 years later, their
conclusions remain true.
They have also concluded from their survey that, in all European countries,
forensic psychiatry remained an under-researched field with scarce administrative
and research data.
Salize and colleagues conducted another interesting survey in 15 European coun-
tries in 2002 entitled: “Compulsory Admission and Involuntary Treatment of
Mentally Ill Patients  – Legislation and Practice in EU-Member States” Grant
Agreement No. SI2.254882 (2000CVF3-407).[2]
They have concluded that legal regulations on the practice of involuntary place-
ment or treatment of mentally ill patients were very heterogeneous across European
Union member states. A comparison of the legal frameworks of the member states
or an evaluation of the effectiveness of their approaches entailed serious method-
ological problems: (1) international epidemiological research in this field had not
yet developed a convincing statistical model for correlating changes in mental
health-care legislation to any outcome of compulsory admission procedures; and (2)
moreover, even the most basic outcome data, in terms of valid or reliable annual
frequencies or rates of compulsory admission of mentally ill persons, were missing
in many countries.
They also draw the following conclusions from their survey: in the future, apply-
ing coercive measures or compulsory interventions to mentally ill people will still
be inevitable under specific circumstances, in order to avoid harm to the patients
17  Prioritizing Research in Forensic Psychiatry: A European Perspective 269

themselves as well as to the general population. Compulsory admission and com-

pulsory treatment, however, infringe fundamentally upon human rights; therefore
appropriate legal regulations will be even more crucial in the future. It will be an
ongoing task to adapt continuously legal frameworks in all countries to keep pace
with developments and new achievements in mental health care and to balance pub-
lic safety and patients’ rights and interests against their needs and rights for treat-
ment. All in all, every mental health-care expert agrees that the involuntary
placement or treatment of a given patient should be a modality of utmost crisis
intervention, strictly restricted to situations where less restrictive alternatives have
failed. Ten years after this conclusion, we have conducted another literature search,
using the English-language literature indexed on MEDLINE/PubMed with the fol-
lowing keywords: “involuntary treatment or compulsory admission, Europe, and
psychiatry” (without time limits). We have found 304 (211 with compulsory admis-
sion) items including mainly national epidemiological data (country per country).
Unfortunately, clinical research concerning, for example, relationships between
compulsory admission and treatment or type of patients remains too scarce.
Finally, Salize and Dressing conducted a third survey entitled:"Mentally
Disordered Persons in European Prison Systems—Needs, Programmes and
Outcome (EUPRIS)" in 24 European countries published in 2007. Grant Agreement
no. 2004106 EUPRIS.[3]
In their final report, they have pointed out some important items that should be
taken into account for further research in the field of mentally disordered prisoners
in Europe:

1. None of the prisons or health administrations throughout Europe knew neither

how many nor what kind of mental disorders were prevalent in the national
prison systems. The annual number of prison suicides was the only feasible indi-
rect indicator for mental health problems in prisons available. Indeed, none of
the countries provided regular national statistics on the frequency of mental dis-
orders of prisoners or on the availability or frequency of psychiatric treatments.
Missing structure and epidemiological or outcome data currently prevented the
identification of a favorable concept of prison mental health care across Europe.
Conventional indicators for mental health care failed to work in the prison con-
text due to a largely varying involvement of national health services into prison
mental health care.
2. In general, specific requirements regarding the care of mentally disordered pris-
oners were not sufficiently covered by the professional training of prison mental
health-care staff. European standards did not exist in this field.
3. Regular mental state screenings of prisoners that fulfilled quality standards were
rare across Europe. Inadequate diagnostic procedures prevented the implementa-
tion of adequate primary, secondary, or tertiary prevention programs for the men-
tal disorders most prevalent in prisons. Moreover, due to inadequate release
planning, psychiatric aftercare for mentally disordered persons released from
prison was deficient. This situation may increase the risk of relapsing and/or
re-offending.
270 F. Thibaut and T. Pham

4. Treatment programs for specific mental disorders in prison were not sufficiently
provided. The available information supported the hypothesis that psychopharma-
cologic drug use by prisoners may significantly exceed that of the general popula-
tion. After adjusting for age, rates of psychotropic prescribing in prison were 5.5
and 5.9 times higher than in community-based men and women, respectively [4].

Almost, 10 years after these pessimistic conclusions, we have conducted a litera-

ture search, using the English-language literature indexed on MEDLINE/PubMed
with the following keywords: “forensic psychiatry, Europe, clinical research or epi-
demiology, and prison” (without time limits). Few papers concerned descriptive
epidemiological data (544) (51 with prison as an additional keyword) or clinical
research (918) (32 with prison as an additional keyword). Most of these latter arti-
cles about epidemiology or clinical research were not related to forensic psychiatry
except when the term prison was included as a keyword. When the terms “prison
and forensic patients” were used without time limits, only 334 papers were found.

17.3 R
 esearch on Management of Violence Using
Technological Innovations

In the field of forensic hospitals and security wards, Tully et al. [5] have focused
their research interest on technological innovations used for management of risk
and violence in forensic psychiatric settings (electronic monitoring by GPS-based
tracking devices of patients on leave from medium secure services and closed cir-
cuit television (CCTV) monitoring and motion sensor technology at high secure
hospitals). They have concluded that these types of technological innovations
should be subject to thorough evaluation that addresses cost-effectiveness, qualita-
tive analysis of patients’ attitudes, and safety as well as ethical considerations.

17.4 The COST Project

Recently the EU has provided a 4-year grant entitled COST Action (IS 1302 avail-
able at www.cost.eu) to conduct a European study on forensic care (especially on
long-term forensic care) across 19 European countries. This European project is
intended to increase research in the field of forensic psychiatry, to harmonize pro-
fessional training and education, to standardize indicators for forensic service pro-
vision and outcomes, and to stimulate aftercare and inter-sectoral perspectives.
The aims of the COST Action are the following:

• To provide a standardized description of epidemiology (patients’ characteristics,

practices), forensic psychiatric assessment, service provision, long-term forensic
patients, patients’ needs, and quality of life
• To describe similarities and differences
• To find evidence for best practices
17  Prioritizing Research in Forensic Psychiatry: A European Perspective 271

• To optimize patients’ quality of life

• To increase training and networking in order to increase research in this field

17.5 Sex Offenders

In the particular field of sexual offenders, research interest has increased during the
last 20  years in Europe. A literature search was conducted, using the English-­
language literature indexed on MEDLINE/PubMed with the following keywords:
“sexual offenders, research, and Europe” (without time limits). We have found 144
papers. Yet, sex offenders constitute an important group among forensic patients,
nearly 50% [6]. Moreover, their mean duration of stay was of, respectively, 8 years
[6] and 4 years (according to [7]). In France, a national cohort of 345 male sexual
offenders with paraphilias (80% were child or adolescent sex offenders) was
recently established. All sex offenders were outpatients, and 90% were under com-
pulsory mental health care. The epidemiological and clinical data of this cohort are
currently under analysis. Some international guidelines concerning (1) biological
treatment of adult sexual offenders with paraphilias and (2) guidelines for the treat-
ment of adolescent sexual offenders with paraphilias were published ([8, 9]; avail-
able via www.wfsbp.org or via PubMed). Pedophilia, which is associated to sexual
offending in a substantial number of cases, has gradually become an increasingly
accepted research field ([10] for review).

17.6 Assessment of Forensic Patients

In this section, we will develop three aspects of research on assessment of forensic

patients: (a) the structured evaluation of diagnosis, (b) the issue concerning the sys-
tematization of violence risk assessment, and finally (c) the quality of life measures
to monitor improvement under treatment in forensic populations.

17.6.1 Prevalence of Mental Disorders in Forensic Patients

The use of internationally standardized assessment scales, especially concerning

diagnosis, are important elements in the evaluation of national and European poli-
cies. Salize and Dreßing [11] outlined that the use of common international stan-
dards in mental health reporting is essential, at least within the EU, to guarantee
valid overviews and provide a basis for more detailed research in the field. According
to the survey of Dressing et al. [12], only a minority of the EU member states were
able to provide diagnostic characteristics for involuntary placements. Non-­
standardized use of diagnostic categories was common. Their survey revealed that
“almost none of the included countries provided regularly national statistics on the
frequency of mental disorders in prisoners or on the psychiatric treatments used. A
major reason for the lack of data on the prevalence of mental disorders in prisons is
272 F. Thibaut and T. Pham

the deficient implementation of standardized psychiatric screening and assessment

procedures following admission to prison and during their time in prison. These
observations suggest the strong necessity for further research in this field based on
structured instruments in order to describe the prevalence of mental diseases and to
monitor psychiatric needs of forensic populations.

17.6.2 Violence Risk Assessment

The World Health Organization has named violence prevention as one of its priori-
ties over a decade ago. Unstructured professional judgment is not as accurate as
structured methods especially in sex offenders [13]. For the last decades, around 90
violence risk assessment tools have been developed [14, 15]. These instruments
combine known risk and protective factors for violence. Actuarial approaches, or
structured professional judgment (SPJ) and dynamic factors instruments, which are
more clinically based, were developed.
These structured measures are composed primarily of static risk factors which are
unchangeable aspects of an individual’s history. More recently, researchers have
developed instruments that combine static and dynamic risk factors. Dynamic risk
factors are potentially changeable and offer direction to providers about what
offender problems to target in order to reduce risk to re-offend. Presently, mental
health professionals are frequently asked to assess the risk of violence among inmates
or forensic patients. This is also recommended by the current clinical guidelines for
psychologists [16], psychiatrists [17, 18], and nurses [19–21]. These guidelines
were implemented in mental health and criminal justice settings, where they are used
by psychologists, psychiatrists, or criminologists to help professionals toward mak-
ing a decision about release into the community, treatment options, or other manage-
ment decisions. Indeed, recent meta-analyses have suggested that different risk
assessment instruments discriminate between violent and non-violent individuals
with comparable accuracy, implying that it is difficult to base tool choice solely on
predictive validity. In light of such findings, experts have recommended to focus on
the assessment needs of the practitioner in terms of the purpose of the evaluation and
the population assessed [20, 22]. According to a search of PsycINFO, EMBASE, and
MEDLINE, ten surveys have been published between 2000 and 2014 investigating
violence risk assessment practices [20]. The studies have provided evidence that risk
assessment tools are commonly used by psychologists in the United Kingdom and
Denmark. However, use of risk assessment scales is nearly nonexistent in some
countries like France due to the lack of training of professionals. Prior surveys of risk
assessment methods have been largely circumscribed to individual countries and
have not compared the practices of various professional categories. Recently, a web-
based survey was developed to examine the international use of structured instru-
ments in the violence risk assessment across five continents and to compare the
perceived utility of standardized instruments by psychologists, psychiatrists, and
nurses. The survey was completed by 2135 respondents from 44 countries [20].
Generally, respondents had used instruments to assess, manage, and monitor vio-
lence risk in more than half of the cases in the past 12 months; psychologists reported
using more often instruments than psychiatrists or nurses who were less trained to
17  Prioritizing Research in Forensic Psychiatry: A European Perspective 273

use them. In Belgium, the subsample was composed of 86 mental health profession-
als (essentially 69 psychologists, 12 psychiatrists, 1 nurse). In the past 12 months,
respondents have conducted an average of 41 assessments using a structured instru-
ment in over half of the cases. The most commonly used scales were the PCL-R
(Psychopathy Checklist-Revised; [23]) and the HCR-20 (Historical Clinical Risk-
20; [24]), which were considered as useful. To develop a violence risk management
plan, the instruments were used less frequently; however, the HCR-20 was found the
most useful. In fact, the Singh et al. [20] survey reported that risk management
plans were not implemented in over a third of cases. Another major result of the
Singh et al. survey consisted of the communication domain. Indeed, feedback pro-
cess regarding outcomes was not common: respondents who conducted structured
risk assessments reported receiving feedback on accuracy in less than 40% of cases,
and those who have used instruments to develop management plans reported feed-
back on whether plans were implemented in less than 50% of cases. Yet, social psy-
chology research demonstrated that judgment accuracy increases when
decision-makers receive feedback on their performances [25]. Moreover, risk assess-
ment tools may not help to reduce violence unless their findings are communicated
transparently and suggestions for risk management are organized [26]. Hence,
receiving feedback following risk assessment and developing risk management plans
could improve the efficacy of mental health services [21].
Although the dynamic factors used in some scales are better conceived as
repeated measures, most of the time, risk assessment evaluations are only performed
on a single occasion. Future research should systematize but also repeat the evalua-
tion in order to assess the potential dynamic changes of patients.
Finally, answers to these questions may help individual clinicians working with
mentally ill and criminal justice populations to identify and implement the risk
assessment tools with the greatest acceptability, efficacy, and fidelity [27].

17.6.3 The Use of Validated Questionnaires About Needs

and Quality of Life in European Forensic Psychiatric
Institutions

The European COST Action “long-term forensic psychiatric care” (www.lfpc-cost.

eu/) has launched an online survey. This survey investigates to what extent forensic
psychiatric services make use of questionnaires in order to investigate the quality of
life experienced by patients and also their needs. In many fields, quality of life (QOL)
measures are increasingly used to evaluate the way individuals perceive their physical
and psychological health, their social relationships, and the quality of their environ-
ment [28]. To understand the concept of QOL as a whole, many generic and specific
measures have been developed. Generic measurements are used to compare groups of
individuals with different mental disorders [29]. More specifically, in forensic patients,
QOL sensitive areas are particularly affected by the conditions of confinement (con-
trol, security, dignity, etc.) and the environment where criminological variables take a
large place [30–33]. However, until now, this measure has not been systematically
implemented in forensic populations. Yet, it seems unavoidable with respect to the
evolution of individuals and provision of health services and forensic institutions
274 F. Thibaut and T. Pham

[30, 31, 34, 35]. QOL instruments were recently introduced among forensic inpatients
[30, 31, 36] but also among prison inmates [37] and constitute an appropriate approach
to tap positive and humanistic psychology [38] as defined by the “Good Life Model”
[39], for which validation studies are still missing.

Conclusion
National and international research on psychiatric prevalence in prisons and on
prison mental health care must be stimulated and increased wherever possible.
The few rudimentary prison mental health data that are available at a national
level are not standardized. As a basic prerequisite for any action taken, more
awareness of the deficiencies and problems must be raised by responsible author-
ities and decision-makers, both at a national and European level. The definition
of common (European) indicators would be most crucial.
Currently, another important field for common European actions would be the
harmonization of training of prison mental health caregivers, which should
become a prerequisite for medical staff and other caregivers working in prisons.
Some important clinical aspects are still pending in all European countries,
such as the relationships between the psychiatric diagnoses and the penal codes,
the systematic use of standardized tools for diagnosis or evaluation of risk of
offending, the implementation of prevention programs in at-risk populations
(such as adolescents with antisocial personality disorders or sexual fantasies or
activities involving children, etc.), and finally,  the monitoring of patient and
institution changes using quality of life measures in order to improve care strate-
gies and trajectories in forensic populations.
Finally, some basic research on the determinants of violence (sexual and non-
sexual) is also urgently needed.
It is urgent that our governments in coordination with our European leaders
take action because the price society has to pay for saving on prison mental
health care is an increased number of relapses and an increased rate of re-offend-
ing by released prisoners – and thus a loss of public safety, an increased strain on
national health budgets, and increased expenditures by the criminal justice
system.

Take-Home Messages
• Systematic use of standardized assessment tools for diagnosis, violence
risk measurement, or quality of life should be strongly promoted in
European forensic populations.
• Training of prison mental health caregivers should become a prerequisite
for medical staff and other caregivers working in European prisons.
• National and international research on psychiatric prevalence in prisons
and on prison mental health care as well as on violence must be increased,
and the European Research Council should urgently add this topic to their
list of research themes.
17  Prioritizing Research in Forensic Psychiatry: A European Perspective 275

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Psychol Rev. 2011;31:499–513.
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Burnaby, BC: Simon Fraser University, Mental Health, Law, and Policy Institute; 1997.
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ments: user’s manual and interpretation guide. Melbourne, Australia: Melbourne WHOQOL
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 Part V
Capita Selecta
A (Possible) Role for International
Associations in the Development 18
of Forensic Psychiatry Education
and Training

Marc Hermans and Florence Thibaut

18.1 The Context

Migration from one country to another is a very common phenomenon nowadays.

Though one expects this to happen more easily with colleagues of more technically
oriented specialties, e.g. surgery, psychiatrists move around the globe with no less
enthusiasm [1]. They see themselves confronted with the more cultural aspects of
human encounters and among them the linguistic aspects. These difficulties are evi-
dently less important for countries where English is a mother tongue, but they evi-
dently occur between countries with different languages.
The signing of the Treaty of Rome on 25 March 1957, thereby establishing the
European Economic Community (EEC), has certainly contributed a lot to the
increased mobility. It was preceded by the foundation of the Benelux by the govern-
ments of the three participating countries in exile in London in September 1944.
Both treaties expressed the will to build a better future for next generations inspired
by the solidarity grown during the terrible world war experience. The Benelux
member states strived for common goals at an economic level together with durable
development, a shared policy in justice and internal affairs. The EEC highlighted
these aims even more by stressing the value of freedom worded in its goals of free
movement of goods, capitals, services and persons.

M. Hermans, M.D. (*)

Child and Adolescent Psychiatrist, Mechelen, Belgium
e-mail: marc.hermans1@telenet.be
F. Thibaut, M.D., Ph.D.
Service de Psychiatrie, Hôpital Tarnier, Paris, France
e-mail: florence.thibaut@aphp.fr

© Springer International Publishing AG, part of Springer Nature 2018 279

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_18
280 M. Hermans and F. Thibaut

18.2 U
 nion Européenne des Médecins Spécialistes (UEMS)1:
European Union of Medical Specialists (EUMS)

It was not only by pure collegiate feelings that in July 1958, the UEMS [2] (www.
uems.eu) was established. The foreseen free movement of medical doctors created
the need for harmonisation all over Europe in order to keep the same level of quality
of undergraduate and postgraduate training, continuous medical education and ser-
vice delivery. The French name justly refers to the francophone initiators though
English became the most currently used language. The concern for quality was
immediately present and conveyed through intense communication with the
European Commission. In this way the UEMS contributed significantly from the
very beginning to the content of European legislation concerning medical
specialties.
In 1962, the UEMS members, all national general medical associations, estab-
lished the Specialist Sections and Boards for the main medical specialties recog-
nised in the different member states. Each member can appoint two delegates to a
Section. They are expected to work on their own specialty specific aspects. Each
Section has a Board, a permanent working group of particular interest because its
delegates mostly have an academic background. A Board should aim at the highest
standards of care within the field of its specialty by ensuring to raise the training to
the highest possible level. The second delegate within a Section is frequently a
member of the board of a union-like association. In this way academic science and
daily professional practice are both represented.
The delegates of a particular Section are proposed by national association(s)
relating to that particular specialty. However it’s the national general medical asso-
ciation’s prerogative to also formally appoint them. Ever since 1962, these opera-
tional bodies without separate legal personality status became “the flesh and blood”
of UEMS striving for quality and harmonisation of training in each specialty. The
Section and Board of a particular specialty write down the necessary competencies
to be acquired by trainees in their document “European Training Requirements for
the Specialty of ….” (ETR).
The enormous growth of UEMS has brought with it a more complex but still
performing structure [3].
Three standing committees take up the different tasks related to different issues:
the Standing Committee on Continuous Medical Education and Continuous
Professional Development, the Standing Committee on Postgraduate Training and
the Standing Committee on Quality Assurance. All three have their issue related
councils: the European Accreditation Council for CME (EACCME), the European

1
 The union was established in Belgium as an international not-for-profit association. Consequently
the statutes had to be written in one of the country’s official languages at that moment, Dutch or
French. The  founding members did choose French since it evidently was  the  most commonly
shared language. Ever since then English became the  main language for  common use within
UEMS. French remains one of the two official languages in the association and the French acro-
nym the most frequently used one.
18  A (Possible) Role for International Associations in the Development of Forensic 281

Council for Accreditation of Medical Specialist Qualification (ECAMSQ) and the

European Accreditation Council for Quality Management in Specialist Practice
(EACQMSP).
The European Accreditation Council for Continuous Medical Education®
(EACCME) is the UEMS body accrediting educational events. UEMS has at this
moment agreements with 21 countries in Europe allowing doctors to get accredita-
tion in their country with a certificate from providers who organised an EACCME
accredited event.
The European Council for Accreditation of Medical Specialist Qualification®
(ECAMSQ) is another council striving to achieve a common background for the
assessment and certification of medical specialists’ competence based on curricula
developed by the Sections. The development of formative assessments of knowl-
edge, skills and attitudes in formats such as Multiple Choice Question (MCQ)
Examinations and Direct Observation of Practical Skills (DOPS) is an important
objective.
The European Accreditation Council for Quality Management in Specialist
Practice (EACQMSP) is the third council but had up until now a rather low impact.
Most reasons are related to the many differences between the organisation of care
delivery in different countries and within countries themselves.
The Council for European Specialists Medical Assessment (CESMA) is another
council giving advice and recommendations on the organisation of examinations,
by providing guidelines on how to conduct assessments, to encourage colleagues to
take board examinations as a personal quality mark, sometimes as an alternative for
national examinations (e.g. ophthalmology).
The processes of subspecialisation and the increasingly overlapping areas of
competencies between specialties have further contributed to the development of
different fora where specialists and other professionals can collaborate.
Multiple joint committees work on a field of interest shared between different
Sections. A Division is the body devoted to a particular field of interest within one
speciality. Thematic federations allow to formally collaborate with nonmedical pro-
fessionals under a UEMS umbrella.
The contribution of the UEMS Sections highly influenced the content of the first
EEC directives relating to doctors (Directive 75/362/EEC and 75/363/EEC) based
on the UEMS Sections’ surveys presented to the EEC authorities. Given the specific
situation for medicine, the EEC established the Advisory Committee on Medical
Training (ACMT) composed by three delegates per country representing the gov-
ernment, the training institutes (universities) and practitioners (professionals). The
European Commission offers an overview of the actual situation [4].
The UEMS has never had formal political power. It publishes consensus papers
or guidelines reflecting the values shared by delegates representing more than 1.6
million specialists in Europe, approved on semi-annual council meetings. These
documents are freely available for consultation via its website (www.uems.eu).
Most important are the many Charters. The ones on Specialist Training [5], on
Continuing Medical Education [6] and on Quality Assurance in Specialist Practice
[7] reflect the three pillars which UEMS’ activities are focused on.
282 M. Hermans and F. Thibaut

Ever since the EEC became larger and eventually became the European Union
(EU) many countries joined the original six. At the time we’re writing, the UEMS
enjoys membership of 37 countries, among them are also candidate countries, not
(yet?) belonging to the EU. At an operational level, it counts 43 specialist Sections
for the main specialties.
In 2005, the UEMS revised its statutes and obtained legal personality status
according to the Belgian law on international non-profit associations.

18.3 The Section of Psychiatry

The Section of Psychiatry, established on November 16th 1991, soon began to work
on the same fields and produced several documents. They are still available via the
Section’s website (www.uemspsychiatry.org). Three documents occupy a very
important position in the Section’s work.
The UEMS Charter on Specialist Training contains six chapters, five of which
are common to all specialties. The Charter addresses the role of national regulating
authorities (Ch. I), general aspects of training (Ch. II), requirements for training
institutions (Ch. III), requirements for chiefs of training (Ch. IV) and requirements
for trainees (Ch. V). The last chapter, chapter VI, European Training Requirements
for the Specialty of Psychiatry [8] is recently updated and currently submitted for
approval by the UEMS Council.
This document was followed by The Profile of a Psychiatrist [9], a position paper
describing necessary competences and tasks of a psychiatrist. It was mainly aimed
for other medical professionals, educators, politicians, decision makers and other
stakeholders such as service users and their families. The seven CanMEDS 2005
roles, expert/clinical decision maker, communicator, collaborator, manager, health
advocate, scholar and professional, were the main guiding principles explaining the
view of the Section.
Perhaps the most important paper the Section ever published was the European
Framework for Competencies in Psychiatry (EFCP) [10]. This addressed all col-
leagues involved in training of psychiatrists. It was written by a working group
composed of members of the Section, delegates from the European Federation of
Psychiatric Trainees (EFPT) and medical educationists. They set up an iterative
process with national psychiatric associations, trainee associations, patient and
carer associations, as well as with the European Psychiatric Association (EPA) and
the World Psychiatric Association (WPA).
The EFCP document lists learning outcomes which national associations and
regulating bodies can refer to, when they conceive curricula for postgraduate train-
ing or systems for continuing professional development. It defines a curriculum as
a whole set, i.e. a statement of learning outcomes, a description of a training struc-
ture and, last but not least, also suggests useful assessment tools. However, the
document abstains from proposing a professional development structure out of
respect for national conditions, customs and traditions.
The EFPC document again refers to the CanMED 2005 roles and defines these
roles as metacompetencies, each described by key competencies and further
18  A (Possible) Role for International Associations in the Development of Forensic 283

supporting competencies. The authors formulate it all in an operational way in order

to facilitate learning as well as their assessment by a number of evidence based
methods.
In 2011 the Section also developed a strategy based on a SWOT analysis to make
itself more visible within a broader network. An officer was appointed vice-­president
for training, another vice-president for CME. To collaborate with other stakeholders
became a major topic of interest. Therefore the Section appointed an officer to
develop working contacts with a patient organisation, Global Alliance of Mental
Illness Advocacy Networks (Gamian) and an association of carers, the European
Federation of Associations of Families of People with Mental Illness, EUFAMI.
The European Federation of Psychiatric Trainees (EFPT) became a very active
partner during and, even more, after the meetings. The contacts with the European
Psychiatric Association (EPA) were revitalised. A delegate of the EPA Board attends
the meetings of the Section’s general assembly. The Section’s vice-president for
training attends the meetings of the EPA’s Committee on Education. The president
represents the Section within the WPA in its Section on Education. This represents
a very active network with one common goal: increasing the quality of psychiatric
training and care delivery.

18.3.1 A Possible Future for UEMS and the Section of Psychiatry

The world has changed dramatically after the fall of the Berlin wall and the opening
of the Central European borders. UEMS has to face different issues now. This poses
a stress at the organisational level. UEMS might have to rethink its structure. The
Sections became very active and developed into almost independent operational
units. This no longer corresponds with their statutory position of dependent UEMS
bodies. On the other side it is almost undoable for officers of the Executive
Committee to further bear the responsibilities for all actions undertaken by the dif-
ferent Sections. They started in many perspectives very fruitful collaborative proj-
ects with, for example, European scientific associations. This clearly contributed a
lot to increased quality of postgraduate training, continuing medical education
(CME) and professional development. This collaboration between Sections and
European scientific associations has led within different specialties to Europe wide
examinations (e.g. in ophthalmology, in certain branches of surgery and internal
medicine). Very recently a Task Force on Education in European Psychiatry was
established as a collaborative initiative shared by the EFPT, the EPA, the Section for
Psychiatry and the World Health Organization.
The Section of Psychiatry, in contrast with other sections, remained rather dis-
crete at this level. This has to do with the huge diversity in training in psychiatry all
over Europe, in organisation of care and organisation of psychiatric practices. Most
striking perhaps is the position of private practice. In some countries it’s a position
taken by more than 90% of the psychiatrists (e.g. Belgium), in other countries it’s
less frequent (e.g. United Kingdom) and sometimes seen as care for an elite of
patients, especially when it is not reimbursed by the insurance system. Nevertheless,
the documents produced by the Section might serve as a solid basis for adjustment.
284 M. Hermans and F. Thibaut

The Section increasingly collaborates with other stakeholders. For example, col-
leagues offer support to exchange programmes as setup by the European Federation
of Psychiatric Trainees [11]. For many young colleagues, such programmes are
opportunities for networking. Many of them feel inspired by new elements in psychia-
try they discover abroad and suggest to implement them in their own national system.
The reform in psychiatric training and modalities of care in Central European coun-
tries nowadays offers a very good opportunity for this kind of adjustments. In the
already more elaborated training programmes in Western European countries, this is
different. In this way, one may consider that establishing a European training pro-
gramme in forensic psychiatry is a good opportunity to almost start from scratch in
psychiatry. Colleagues working in other fields of interest might learn from this
experience.

18.4 The European Psychiatric Association (EPA)

Another important stakeholder from a European perspective is the European

Psychiatric Association (EPA) (www.europsy.net). It was established in 1983 [12]
according to the French law on non-profit associations as the Association of
European Psychiatrists (AEP). At its beginning, the AEP gathered mainly French
and German psychiatrists. The founding members wanted to create a counterweight
to the increasing influence of the American Psychiatric Association when DSM II
was published in order to safeguard the values and traditions of European psychia-
try and increase the impact of European research.
The young association carried forward from the very beginning the intention to
develop a scientifically inspired series of activities. The choice for Strasbourg as
headquarter, on the border between France and Germany, symbolised the presence of
a strong European cultural background. Being located in the neighbourhood of the
European parliament was evidently also a clear political statement. As an association
for individual members, AEP attracted psychiatrists from outside the European
Economic Community, later the European Union. After the disappearance of the iron
curtain, the attraction spread even further towards colleagues from the Central
European Countries who joined the association, engaging enthusiastically in scien-
tific events.
The association made steps forward by becoming a consultative body for the
Council of Europe in 1989. Different parts of the European Union rely on advice
and opinions of EPA members. The EPA has always worked in collaboration with
other organisations such as the World Health Organization (WHO), the World
Psychiatric Association (WPA), the Section of Psychiatry of the UEMS, the EFPT
and the European College of Neuropsychopharmacology (ECNP).
The association changed its name in 2008 to European Psychiatric Association
and created a council of national psychiatric associations in addition to individual
members.
18  A (Possible) Role for International Associations in the Development of Forensic 285

18.4.1 Scientific Events

The EPA is well known for its EPA congresses. The first annual congress was held in
Strasbourg in 1984. At the beginning they took place at the president’s hometown but this
quickly changed. Different major cities in Europe hosted this important EPA event. Since
a few years, some of the presentations given at the congresses are available on line.
Of particular interest are the CME Courses [13] organised during the congresses.
Everyone can submit a proposal. The high number of proposals made an evaluation
process necessary. The topic, the clinical relevance and the scientific value of the
content are considered as important criteria to fulfil.
Very similar to the CME courses are the Itinerant CME Courses. These are
courses to be given in collaboration with national psychiatric associations (NPAs).
An NPA can apply for a course of its choice by contacting the EPA’s headquarters
in Strasbourg. Applications however can only be accepted according to the yearly
assigned budget.
The EPA Academia Summer School [14] addresses each year aspects of comor-
bidity between mental and physical disorders. European trainees and young col-
leagues within their first 2 years after the end of their training can apply to attend
this summer course. A thorough selection procedure chooses those who, during a
whole week, will be trained. According to many participants, the contributions out
of different medical specialties lead to very enriching experiences.
Since 1986, European Psychiatry, the journal published under the auspices of
the EPA, has become an element in disseminating scientific knowledge with an
impact factor of 3.54 [15].
Next to peer-reviewed research articles, this journal also publishes the EPA
Guidance Papers. The Guidance Committee prefers the term “guidance” because of
the huge differences within Europe concerning training duration and content, avail-
ability of drugs and delivery of care in the field of psychiatry, among others.
Developing generally accepted guidelines for the whole of Europe would become
hardly possible.
Recently the Committee on Education explored e-learning options. The first
author explored a few years ago some e-learning options as a member of the
Committee on Education (CoE), but the CoE concluded that these would lead to
financial commitments too important to bear for EPA. Very recently the EPA has
taken a first step by launching a MOOC on cognitive behavior therapy.

18.4.2 EPA Committees and Sections

If one hopes to engage EPA in the development of education and training in forensic
psychiatry, a basic view on its operational bodies is helpful. In order to facilitate
collaboration on different operational levels, EPA established a number of EPA
Committees. Next to these committees, Sections fulfil an important position [16].
286 M. Hermans and F. Thibaut

The Scientific Programme Committee organises the congresses, helped by the

Advisory Scientific Committee for more general scientific aspects, while Local
Organising Committees are involved in more practical aspects.
The EPA has started different programmes to improve professional knowledge
and skills under the umbrella of the Academia for Excellence in European Psychiatry.
The Committee on Education invites every year a selection of young colleagues to
attend the EPA Summer School. The committee members evaluate CME courses
given during the annual congresses and also compose the list of itinerant courses
mentioned above.
The Committee on Ethical Issues has mainly an advisory function in this very
broad field. The committee’s interests vary from teaching ethics in medicine and
psychiatry to offering advice to individual psychiatrists. It collaborates with national
psychiatric associations and produces EPA position statements on ethical issues
which might be of interest in the forensic field.
The Early Career Psychiatrists Committee focuses on issues arising at the very
beginning of a psychiatrist’s career. This Committee developed a special track for
young colleagues on the annual EPA congresses, focusing on education as well as
on more pragmatic aspects relevant for a young professional.

18.4.3 The EPA Section for Forensic Psychiatry

One of the 21 EPA sections is dedicated to forensic psychiatry. The members see it
as their mission to “promote high quality care for mentally disordered offenders
through improved standards of assessments, the development of effective interven-
tions and an increase in research activity in the field of forensic psychiatry” [17].
The Section has formulated more concrete objectives listed on its website. The
Section is involved in organising symposia and educational events on the EPA con-
gresses. Relevant issues addressed in the past were the treatment of sex offenders,
the role of neurobiological factors in antisocial behaviour and overviews on treat-
ment outcome results. Next to these activities, the Section is actively seeking col-
laboration with other stakeholders, e.g. the Ghent group.

18.5 The European Federation of Psychiatric Trainees (EFPT)

One of the most vivid associations in the field of European psychiatry is the
European Federation of Psychiatric Trainees. After an informal meeting in June
1992, the European Forum for Psychiatric Trainees was continued all the years later.
The forum has since then increased its number of participating trainee associations
out of the different European countries.
In 1998, the participants from 22 countries present at the annual forum, created
the European Federation of Psychiatric Trainees. Participants appointed a Board
composed of three officers: a president, a treasurer and a secretary. Enthusiastic
trainees started to spread EFPT statements on training, its organisation and quality,
18  A (Possible) Role for International Associations in the Development of Forensic 287

as well as quality assurance. But they also addressed the issue of mental and physi-
cal health of trainees and accredited psychiatrists [18].
At this moment EFPT obtained a permanent representation within the two
psychiatry-­related UEMS Sections where these young colleagues have shown
themselves as very active participants in the debates. Both the Section for Psychiatry
and the Section for Child and Adolescent Psychiatry are actively involved in the
development and achievement of projects. Next to that, EFPT has also developed
contacts with the World Health Organization.
The EFPT Annual Fora allow trainees not only to network but also to present
their own scientific work in poster sessions and oral presentations. In this way EFPT
continues to create an opportunity for young colleagues to gain experience in pre-
senting in front of an international audience, certainly not uncritical though
supportive.
By adopting statutes according to Belgian law in 2010, EFPT made the step from
an informal association to an international non-profit association with the status of
a legal person.

18.5.1 EFPT Working Groups

The outcome delivered by the EFPT is mainly brought forward by its main opera-
tional bodies, the Working Groups. Actual focuses of interest are child and adoles-
cent psychiatry, Maintaining and Establishing a National Trainees Association
(MENTA), exchange programmes, involuntary interventions,2 recruitment and posi-
tive image promotion, psychoactive substance use disorders, psychotherapy and
research.
The enthusiasm, the positive energy emerging out of these young colleagues is
very inspiring for all involved in psychiatry. It fulfils one with hope and courage for
the future of psychiatry in Europe.

18.6 T
 he European Federation of Associations of Families
of People with Mental Illness (EUFAMI)

Patients and their families play an increasing role in different medical specialties,
and their important role is now well recognised in psychiatry. EUFAMI was for-
mally founded [19] in 1992 after a congress, taking place in 1990  in Belgium.
Carers from all over Europe shared their difficult experiences of helplessness and
frustration while living with family members suffering from severe mental
illness.
EUFAMI is an international non-profit organisation, registered in Belgium. It’s a
federation of 29 family associations (including one non-European) and five other
mental health associations that support family carers and people with mental illness

 All interventions without the consent of a patient.

2
288 M. Hermans and F. Thibaut

throughout Europe. EUFAMI has members in 22 European countries and one non-­
European country.
They resolved to work together to help both themselves and the people they cared
for. EUFAMI aims to represent at a European level family carers in order to obtain
recognition and protection of their own rights as carers. They conceive this as having
the right to decide to what level to be involved in decision-making, planning and fol-
low-up of care without being held legally responsible. The organisation also actively
supports those who want to establish associations for family carers in their country.
During its international congresses, EUFAMI brings together their member asso-
ciations, but the association also participates in other psychiatry-related events. A
synopsis of its main goals and aims, the Sofia Declaration [20], was published after
its 2015 congress in Bulgaria. As soon as 2009, EUFAMI stressed the importance of
taking care of the physical health of psychiatric patients by publishing its Mental
and Physical Health Charter [21]. A recent initiative is the organisation of a train-
ing programme, Prospect, addressing those who had experiences with any kind of
mental illness, a programme available in 11 European languages [22].

18.7 The Ghent Group

The Ghent Group [22] is an informal group of European forensic psychiatrists and
trainees in forensic psychiatry interested and experienced in training in the field. It
was named after their first meeting in 2004 in Ghent, Belgium, and focuses on the
commonalities and differences in training between different European countries
(http://www.ghentgroup.eu).
Its interests are focused on best practices and training of young psychiatrists.
With regard to the increasing harmonisation of medical practices and qualifications
in all specialties across the European Union, the Ghent group has formulated some
primary objectives to assist this harmonisation process within the domain of foren-
sic psychiatry.
The Ghent group particularly stresses the importance of the following points:

1. A European Certificate of Completed Specialist Training (CCST)

A European CCST would enable psychiatrists in one country of the EU to work
in any other EU country if language conditions are fulfilled.
2. Recommendations about and promotion of all aspects of training and continuous
education
The Ghent group wants to facilitate high levels of training and practice of foren-
sic psychiatry across European countries, further development of highly qualita-
tive concepts in theory and practice. The Ghent group therefore organises annual
summer seminars for European consultants and trainees experienced in forensic
psychiatry.
3. The development of professional forensic groupings
The Ghent group wants to support processes of grouping formation in countries
developing new forensic services. In this perspective an annual autumn meeting
18  A (Possible) Role for International Associations in the Development of Forensic 289

is organised every year in a different European city open to forensic psychiatrists

interested in these goals.

18.8 A
 n Example of a European Network: A COST Action
on Forensic Psychiatry

Recently the EU has provided a 4-year grant entitled COST action [23] (www.cost.
eu) to conduct a European study on forensic care (especially on long-term forensic
care) across 19 European countries. This European project is intended to increase
research in the field of forensic psychiatry, to harmonise professional training and
education, to standardise indicators for forensic service provision and outcomes and
to stimulate aftercare and inter-sectoral perspectives.
The aims of the COST action are the following:

• To provide a standardised description of epidemiology (patients characteristics,

practices), forensic psychiatric assessment, service provision, long-term forensic
patients, patients’ needs and quality of life
• To describe similarities and differences
• To find evidence for best practices
• To optimise patients’ quality of life
• To increase training and networking in order to increase research in this field

18.9 A
 Possible Future Role for the Three Main Stakeholders
in Forensic Psychiatry?

Many specialties in Europe have now their own central examination organised
by the Sections’ Boards. In some countries a specialist who succeeds in a par-
ticular European Board examination is directly recognised and obtains an offi-
cial certification as specialist. The most successful scenarios are based on a
fruitful collaboration between UEMS Sections and their specific partner
associations.
It’s quite evident that this poses major difficulties to resolve in psychiatry,
many related to language problems. Therefore it seems more doable to organise
Europe wide common training curricula in specific domains where language is
less defining the context of the examination. It’s obvious that more technical
interventions are less susceptible to language biases. One might imagine that
neurophysiological tests, e.g. quantitative EEG analysis, after obtaining a solid
scientific basis and hence possibly more commonly usable in psychiatry, would
become object of such examinations. Psychopharmacology might be another
valuable candidate. However, it remains more difficult to foresee how this can be
organised on the practice of psychotherapy mainly because of the language dif-
ferences and long-standing local traditions in training and cultural differences in
doctor-patient relationships.
290 M. Hermans and F. Thibaut

A European examination might also be a valuable procedure for those fields of

interest in which a rather limited number of colleagues are involved, e.g. in treat-
ment of sex offenders. Succeeding in an examination on such a particular field of
interest would at least offer to the bearer the benefit to have obtained a label of
internationally guaranteed quality. It can be left afterwards to national certifying
authorities to decide to what degree this kind of certification can be implemented in
their national procedures.
Forensic psychiatry is a recognised subspecialty of psychiatry with a separate
CCST in the United Kingdom and Ireland only. However, this is not the case in most
other European countries, though most of them do have specific training programmes
in forensic psychiatry or develop further specific regulations such as Belgium.
With increasing mobility between countries and a continuously expanding EU, it
is likely that more specialists will seek or be invited to work outside their native
country. Judicial authorities will experience an increasing need for transfer of cases
to psychiatrists competent in forensic psychiatric care. In the forensic field, there
will be an increasing need for international consultation and clinical follow-up.
With regard to scientific support, it’s obvious that the main publishers in the
world all have textbooks and peer-reviewed journals about forensic psychiatry.
However, they mainly address clinical psychiatry subjects (disorders, age- or
gender-­related issues, substance abuse, etc.), how clinical examinations and testing
should take place, risk assessment, content and format of reports or formal legal and
ethical aspects. A single chapter on transcultural issues is mostly the sole aspect
possibly related to international interest. If collaboration between law enforcement
institutions faces the challenge of increasing globalisation, this is even more so for
forensic psychiatry.

18.10 F
 orensic Psychiatry: A Field of Interest Though It Is Not
a Speciality of Its Own

At least one can say that forensic psychiatry certainly has gathered a solid basis of
scientific knowledge and evidence. Unfortunately, this evidence is showing that
uncertainty can prevail over certainty. If psychiatry remains the field in medical
practice where humility is justly at its place, this is certainly true for forensic
psychiatry.
A significant number of colleagues in all European countries are practicing
within this field of interest in all kinds of clinical environments. This might be seen
as a proof for the need of a more qualified approach to psychiatric assessment and
care for people within a criminal justice system though the supporting scientific
basis still might be too weak at this moment.
Last but not least, there is a growing interest in mental disorders and their treat-
ment within our society, not only concerning the general population but more spe-
cifically about mental ill health of criminal offenders.
These three elements strongly support a strategy to obtain the recognition by the
European authorities of a distinct competency in forensic psychiatry.
18  A (Possible) Role for International Associations in the Development of Forensic 291

Take-Home Messages
• We need a forensic psychiatry syllabus, a list of items about knowledge,
skills and attitudes based upon existing scientific evidence.
• Conceive a task force with delegates from the UEMS Section of Psychiatry,
the EPA Section of Forensic Psychiatry together with interested trainees
from EFPT.
• Its tasks could be:
–– To define priorities, shared needs and common goals on a European
level
–– To initiate, develop and support further Europe-wide research in foren-
sic psychiatry to consolidate the scientific basis for the discipline
–– Becoming a compass for all stakeholders involved, an exquisite body to
develop standards for training, accreditation and continuous profes-
sional development

Great ideas many a time are realised by enthusiasts who act with convic-
tion, inspiration and patience. Why not hope that we can find colleagues to
start such a project?

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10. Union Européenne des Médecins Spécialistes Section for Psychiatry. European frame-

work for competencies in psychiatry. 2009. http://uemspsychiatry.org/wp-content/
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uploads/2014/01/EPA_statutes_2016.pdf. Accessed 26 Nov 2016.
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european-psychiatry/. Accessed 26 Nov 2016.
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2016.
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Deinstitutionalization Versus
Transinstitutionalization 19
Thomas Marquant and Francisco Torres-Gonzalez

19.1 Introduction

Deinstitutionalization is happening at different speeds and rates throughout the

world as well as in Europe [1–6]. Although beds are closing all over, differences in
the organization of mental health care or justice systems do not always allow easy
answers or generalizations when it comes to investigating the consequences or links
with forensic psychiatric beds. Nevertheless, the trend of deinstitutionalization is a
general trend and does seem to have an important effect on forensic beds as well.
Italy, a trendsetter in deinstitutionalization, closed all of its psychiatric beds in 1978,
while Belgium only started deinstitutionalization from 2011. In Spain, the closing
of beds started in the 1980s [7]. In the Netherlands, beds were closed down from the
mid-1990s [8]. Hodgins et al. [4] mentioned an increase of forensic beds throughout
European countries that did close beds ranging between 10 and 143%, depending on
the rigourness of the deinstitutionalization. Also, other authors found a trend in
increased forensic bed use and describe a re-institutionalization into forensic mental
health-care facilities [1, 9]. Mentally ill patients shifting from regular care to foren-
sic care, or worse, to prison, would be an unwanted and harmful side effect of dein-
stitutionalization, more appropriately named transinstitutionalization [1, 2]. The
term indicates a shift towards institutional settings run by the justice department
instead of mental health care. Already in the USA, up to 10% of prison population
suffer major mental illness, and patients suffering from mental illness have an 800%

T. Marquant (*)
Justice Department Belgium, Faculty of Medicine, Collaborative Antwerp Psychiatric
Research Institute (CAPRI), Antwerp University, Antwerp, Belgium
e-mail: thomas.marquant@just.fgov.be
F. Torres-Gonzalez
Faculty of Medicine, University of Granada, Granada, Spain
e-mail: ftorres@ugr.es

© Springer International Publishing AG, part of Springer Nature 2018 293

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_19
294 T. Marquant and F. Torres-Gonzalez

greater probability to have a first encounter with law enforcement instead of health
care (Fazel 2002) [10, 11].
In Europe, one of the countries where the rise in forensic beds was well demon-
strated was in Denmark. Kramp and Gabrielsen [12] described how, over a period
of 30–40 years, Denmark organized its deinstitutionalization. As such, from 1980
till 1990, he reported a decrease from 10,000 to 4000 beds in regular psychiatry. His
results revealed an increase in forensic beds, as well as an increase in patients that
were deemed not guilty for reason of insanity (NGRI) and homicide rates by men-
tally ill offenders. The effect was not immediate yet only manifested itself in the
long term. But he also stated community care or social support—non-forensic—has
little effect on the findings.
Priebe supported these findings, giving information from six European countries
from 1990 till 2002. All countries reported a decrease in beds yet rises in prison
populations and forensic beds [1].
It is clear deinstitutionalization does not come without (side) effects on forensic
mental health care and raises issues for concern. We will look into such effects on
forensic beds of deinstitutionalization in Europe and throughout countries that have
implemented closing of beds.
In the current chapter, we need to get an idea of the influence of deinstitution-
alization on forensic mental health care throughout Europe as well as the position
of the phenomenon amidst other elements that might be driving the number of
forensic beds up. One way would be to go through the different European coun-
tries, yet we choose to construct the chapter going through the different elements
that the literature provides when it comes to the rise in forensic beds and the role
of deinstitutionalization. Several authors have described how the rise in forensic
beds is mediated through a range of causes [7, 12, 13]. To detect these elements,
we choose to start from the Austrian case. Also, we will add some new elements
of our own.

19.2 The Austrian Case

Austria is a country with a very well-documented experience concerning deinstitu-

tionalization. Especially [13, 14] has devoted several articles to the phenomenon. In
his opinion deinstitutionalization is part of a more ambitious project of the ‘normal-
ization’ of psychiatry. On the one hand, there is a shift towards community-based
care, next to another trend to empower patients and reduce coercion. In this context,
it makes sense to reduce beds.
Austria as a country is interesting to follow up shifts in beds in favour of com-
munity care, as it is a small country, with stable and low crime rates and a stable
population. The number of psychiatric beds went down from 11,851  in 1970 to
6282 in 1990 and just 4496 in 2002. In the same period, hospital admissions went
down by 72%. The last change in penal legislation dates from 1975 [14]. Legislation
that might influence mental health care has remained stable and could not have
biased the findings.
19  Deinstitutionalization Versus Transinstitutionalization 295

He sets the stage in the 1970s, where 94% of all inpatients were involuntary, and
community care was limited to outpatient clinics in university settings. Yet, in the
late 1970s, beds were cut by 47%, which reduced the mean length of stay from
167 days in 1970 to just 54 in 1990. From 1990 till 2002, beds were further reduced
by 28%. Beds went down over this time from 11,851 to 6282, then 4496 in the end.
From 1991, the number of NGRI patients started rising significantly in Austria
[14], although legislation remained unchanged since 1975, as well as the total crime
rate. While 110 NGRI patients were sentenced in 1990, in 2008 the number rose to
nearly 350, yet the length of stay in forensic beds remained stable. This led to a rise
in forensic beds, of course, which is a clear example of transinstitutionalization. As
a consequence, mentally ill patients could be at risk of ending up committing crimes,
which led to admissions in forensic units.
According to Schanda, deinstitutionalization is accompanied by several other ele-
ments before it leads to transinstitutionalization, which we will describe [1, 13]. He
mentioned the expansion of community care, shifts in characteristics of residential
and community patients, a critical percentage of bed closing, a potential of wrongful
transfers to forensic care and changes in civil commitment law. Of course, there is an
overlap between some, if not all, of them. Next to the main ones, we add three of our
own, namely, training and education, funding and forensic deinstitutionalization.

19.3 Elements of Transinstitutionalization

19.3.1 Community Care

Community care is important in several ways. It needs to replace the care given in
the beds that were downsized, as this will inevitably mean patients will need alter-
natives for the continuation of their treatment. As such, it is important to see what
community treatment looks like and what its relation to the remaining beds will be.
The continuity of community care-based programmes covers a wide range of
ways to bring care to patients. Also, insight in the exact nature of community care is
important if we want to compare it to hospital care. Community care can be placed
on a continuum, measuring its intensity in delivering treatment [15]. Very intense
ways, specifically designed to replace hospitals, are assertive community treatment
(ACT) or flexible ACT [16, 17], the so-called outreach programmes. Less intense
forms of community care could be community mental health teams and outpatient
clinics in the UK, amongst others [18]. ACT consists of a strict model of care that
focuses on seriously mentally ill people and offers 24/7 follow-up, multidisciplinary
care with substance use disorder treatment at home of the patient including emer-
gencies at home. When executed effectively, it has proven to be very effective in the
USA. Results in Europe, such as in the UK, have been less convincing, though [19].
Rather than avoiding admissions, there is more proof that ACT reduces the length of
stay but is significantly better if it comes to quality of life and experienced self-
control [20]. This does suggest that even in the most intensive forms of community
care, there will always be a need for beds for short-­term crisis admissions. This was
296 T. Marquant and F. Torres-Gonzalez

also the case in Austria, where the number of hospital admissions went up from
25,000 to 65,000 between 1970 and 2007 [13].
In Austria, Schanda mentioned that community care only started to develop
from 1990 onwards, when deinstitutionalization had already been happening for
10 years. He mentioned outpatient clinics and sheltered housing. Some beds were
actually reopened from 2002 yet on psychiatric wards in general hospital wards.
This does seem to adapt well to the need for residential back-up community care
still needs. Sheltered housing moreover is a well-known element of successful
community care [21].
Strangely, the rise in forensic beds started only from 1990, after the start-up of
replacing community care. Obviously, this seems to suggest community care makes
little difference after deinstitutionalization. Yet, it might be argued that solely outpa-
tient clinics on their own are not the answer to the high needs of the patients leaving
the hospitals. Low compliance and a lack of insight are important characteristics of
these patients and would need outreach strategies and motivational techniques as
opposed to clinics. These findings stress how community care must rely on a com-
plex net of settings, and it should be able to face unmet needs of the several mental
disorders: from lodging and sheltered work to all sorts of clinical care services,
including physical health supervision. As such, it is not an expensive model, but
more efficient than the institutional one.
Vázquez-Barquero [7] told us how community care, although intended, was
insufficiently developed in Spain, following deinstitutionalization, as well, mostly
due to a lack of financing and a lack of understanding by politicians of the high
complexity of the community mental health-care model.
In Belgium, deinstitutionalization was only started very lately, in 2011, and only on
a small scale. Even today, the available psychiatric beds per capita in Belgium are sec-
ond in the world next to Japan [22]. The reduction in beds was compensated by well-
elaborated community mental health teams, based on the flexible ACT teams in the
Netherlands [17]. It will be interesting to follow up the effects on forensic beds and
NGRI patients in a context where community care was reasonably well organized.

19.3.2 Population Shifts

Closing down beds and shifting patients towards community care are likely to influ-
ence the population of the residual beds as well in such a way these changes could
be partly responsible for transinstitutionalization [23].
In Austria, Schanda et al. [13] mentioned how a specific type of patient is leav-
ing the hospital as a consequence of the bed closing, which he called ‘not nice to
treat’. Reducing bed numbers was specifically done for chronic beds, which
resulted in them ending up in community care. As we mentioned before, funding
issues and model fidelity of the community care were unable to cope with these
patients. ‘Not nice to treat’ stands for a subgroup of chronic patients, with a lack of
motivation and insight, comorbid substance use disorders and non-compliance,
who were at risk of committing more, smaller, crimes and coming into contact with
police services [12, 13]. As this means several clinical and demographical
19  Deinstitutionalization Versus Transinstitutionalization 297

characteristics of these patients will clearly set them apart from the other patients,
forensic care will need to provide specialized ways of treatment, often chronic in
nature. In many cases, general psychiatry will have had their chance to treat them
yet failed, mostly due to a lack of efficient treatment for people with complex
pathology with poor compliance to treatment [4, 24].
It is important to mention differences in legislation regarding criminal responsi-
bility throughout Europe, as these could influence which type of patients end up in
forensic settings. A crucial element is which diagnostic categories are grounds to
deem a person to be not guilty for reason of insanity (NGRI). This might influence
what we understand throughout Europe to be a ‘forensic patient’. Especially, the
criterion of a primary (antisocial) personality disorder or a primary diagnosis related
to substance use is relevant. The issue is well documented in a report by Salize [9]
that overviews such legislation throughout Europe. Only a minority of countries in
Europe consider patients with a primary personality disorder or a substance use
disorder as sufficient grounds for diminished responsibility, not guilty for reason of
insanity (NGRI). In Belgium and the Netherlands, for example, a primary personal-
ity disorder is a sufficient ground for diminished responsibility, and an important
proportion of NGRI patients have a primary antisocial personality disorder. Of
course, other elements such as severe substance use, learning disabilities or a revolv-
ing door pattern are usually extra elements that are considered in this decision. Yet,
as this creates just the option of treatment for patients with APD, it facilitates their
inclusion in forensic mental health care and becomes a reason for the increase in
forensic beds, next to transinstitutionalization.
This is of course just one example of differences in the legislation between coun-
tries, and it might be good to remember deinstitutionalization happens in a complex,
legal and social environment that limits generalization of any findings. Tailoring
approaches to transinstitutionalization to these circumstances is advisable.

19.3.3 Critical Number of Psychiatric Beds

One of the elements that has been raised is that deinstitutionalization has a critical
balance between institutional care and community care from where transinstitution-
alization starts [25]. He stated that deinstitutionalization can only happen success-
fully when it happens in a well-organized and comprehensive mental health system.
Thornicroft proposed a stepwise approach, corresponding to the level of resources
a country has. As such, he divided countries in countries with low, medium and high
level of resources. There are three steps.
The first step integrates mental health care into primary care as a way of screening.
If primary care fails, inpatient care is organized in general hospitals. The second step
is called ‘mainstream’ mental health care and combines acute inpatient care, commu-
nity mental health teams and outpatient clinics. Also, this step offers specialized, tar-
geted or adapted employment and occupation. The final step expands the elements of
step 2. Only the third step specifically mentions deinstitutionalization and the use of
community-based care as an alternative to inpatient care. Highly resourced countries
should implement all three steps proposed by Thornicroft, whereas medium countries
298 T. Marquant and F. Torres-Gonzalez

should include only two steps, and the low category is recommended to implement
only the first step. Again, this stresses deinstitutionalization should never be a way to
cut costs yet should offer a fully staffed and funded alternative to inpatient care.
Inpatient and outpatient care are no islands, and according to Thornicroft, neither
should exist on its own. A well-balanced equilibrium is strongly recommended.

19.3.4 ‘Zeitgeist’

A fear following deinstitutionalization is that an increase in forensic beds would sug-

gest that mentally ill patients end up in these settings wrongfully, as a result of a
‘Zeitgeist’, suggesting an unsupportive and punitive societal environment in Europe
towards mentally ill patients. The reality of patients returning into the community
would clash with increased concern of society to deal with them and suspecting a link
between crime and mental illness. This issue was researched by [4]. She compared
clinical and historical data from general psychiatric patients with forensic patients at
discharge from institutional care. The data was limited to psychotic patients with vio-
lent behaviour. Especially, histories of failed treatment, comorbidity, histories of
crime and aggressive behaviour were looked into. The idea was that if no differences
were found, this would mean that patients ended up in forensic care wrongfully, which
could be a sign that a Zeitgeist was criminalizing psychiatric patients. The study was
conducted in Canada, Sweden, Germany and Finland.
Interestingly, she did found differences. Eighty percent of forensic patients had a
history of previous admissions in general psychiatric institutions. But all of the
forensic patients had histories of violent crimes, compared to, still remarkably, 40%
of the general psychiatric population. Also, the forensic patients had higher scores
on scales measuring callousness. These findings demonstrated that forensic patients
did differ significantly from their general counterparts, when it comes to aggressive
behaviour, and that it is exactly this kind of behaviour that makes them shift to
forensic care. Next to the clinical and demographic differences, this conclusion is
supported by the finding that patients that were involuntary admitted for reasons of
dangerousness to others are released much faster than in case of danger to self [26].
The issue of Zeitgeist as such means a failure of regular psychiatric services to deal
with a specific type of mentally ill patient, who ends up in forensic care.
Salize [9] mentioned how Zeitgeist could also mean different attitudes towards
care. He mentions how Latin countries, such as Spain and Italy, rely more on infor-
mal support and non-professional care, mostly consisting of family support.

19.3.5 Civil Commitment Legislation

Schanda mentioned legislation regarding involuntary admissions as an element to

consider when discussing transinstitutionalization. In Austria, he described how
civil legislation has shifted towards a more liberal view, which could have as a con-
sequence that real coercive measures would be left to penal law and as such would
lead to an increase in forensic admissions. But that did not happen in Austria. True,
19  Deinstitutionalization Versus Transinstitutionalization 299

forensic beds went up but so did the number of civil commitments. He explained
that it is not the law change as such that creates an increase in forensic beds but,
again, an inadequate dealing with aggressive patients during the civil commitment
[13]. As we explained above, patients admitted involuntary for aggression towards
others are discharged much faster than in case of self-harm. Together with the
Zeitgeist and population shifts described above, changes of civil commitment legis-
lation emphasize the specificity of the forensic patient.
Outside Austria, Kallert and Torres-Gonzalez researched civil commitment
­legislation in 12 European countries (EUNOMIA study, [27, 28]). The study clearly
shows how much legislation on civil commitment differs throughout Europe, which
makes generalization impossible. The difference between clients at risk of harm to
others and the ones at risk of harm to themselves, for example, was not found in the
EUNOMIA study. Countries differed in the way they consider the basic clinical con-
ditions, such as the nature of the required mental health state, as well as additional
requirements, such as risk requirements. Moreover, the countries differed on the
degree of coercion used and patient and family participation. Different approaches
towards civil commitment were likely to interact differently with penal legislation
and transinstitutionalization as such [28]. Again this stresses the need for tailoring of
an approach to the local complex reality of the health care.

19.3.6 Funding Requirements

Hospitals are expensive ways of care delivery, and shifting towards community-­
based care can also be driven by economic reasons. Adequate funding of commu-
nity care is essential and at risk when financial reasons are the main drive for
deinstitutionalization. Several authors explicitly mention the shift towards commu-
nity is insufficiently followed by the necessary funding, resulting in loss of model
fidelity and efficiency [7, 13, 29, 30].
Also, as the transinstitutionalization is forcing to raise funding and creating of
the forensic number of beds, there is a risk regular services will specifically avoid
patients at risk of police contact, claiming they are not funded to treat these patients.
This might strengthen the pathway towards forensic care for patients at risk of com-
mitting even minor crimes.

19.3.7 Education and Training

A shift towards community treatment requires different skills and techniques to

engage patients, skills that will need to be regarded in the training of staff [31].
Respect, accessibility, stigma alertness and cultural sensitivity are amongst a range of
important skills [31]. As traditional schools are used to training mental health workers
for institutions, this might mean there is a need for a paradigm shift within training
settings towards community-based settings. Implementing and teaching specialized
forensic rehabilitation models are strongly recommended [32]. The dominance and
resistance of institutions to change can be a well-known barrier for staff to adapt, as it
300 T. Marquant and F. Torres-Gonzalez

was the case in Spain and Belgium. Secondly, training in risk assessment, even for
non-forensic patients, should be implemented as well to adapt regular psychiatric ser-
vices to better detect and possibly prevent patients being at risk of offending. In his
report from 2005, Salize found only 5 out of 24 European countries have specific
‘forensic’ requirements for mental health workers to work in prison, which gives us an
indication of how even in a forensic environment, proper education does not happen.
Similarly, regarding civil commitment legislation, in his overview of 12 European
countries, Kallert and Torres-Gonzalez [27] showed how the authority to decide on
the need for emergency commitment was only in four countries taken by a psychia-
trist. Decisions on mental health status in other cases are made by regular physicians
or even more strangely, administrative hospital personnel, family or attorneys.
Models to base training of forensic mental health workers should include the
Risk-Need-Responsivity Model (RNR, [33]) and the Good Lives Model (GLM,
[34]). Both models offer evidence-based rehabilitation theories for mentally ill
offenders that target criminogenic as well as non-criminogenic needs yet introduce
a hybrid functioning of the case manager that combines risk assessment with treat-
ment and stresses the importance of.

19.3.8 Forensic Deinstitutionalization

When we discuss deinstitutionalization of regular beds and a possible shift towards

forensic care, it is remarkable how this seems to imply that forensic care still means
beds. Deinstitutionalization was developed as a way to normalize psychiatric care,
and community-based care has since proven to be efficient, and to greatly improve
quality of life and patient satisfaction [35]. Community care has become best prac-
tice for psychiatric patients. It does seem odd that these principles would not apply
for forensic patients, and community-based care as an alternative to institutional-
ized care should be considered [36].
This will not be an easy task. In 2008, when confronted with the need to build a
new prison, Aos [37] was asked by the state of Washington to research the evidence
base of alternatives to building it. He limited the research to results that reported on
effect sizes or offered enough material to calculate effect sizes and found over 500
reports. Her results seem to demonstrate that community care would need to be
intensive and treatment oriented as opposed to control-oriented. Research in the
USA, Germany and Belgium give hopeful results with forensic adaptations of asser-
tive community treatment [38, 39].

19.4 Discussion

In conclusion, it is safe to say that the worldwide closing of beds had a great influ-
ence on the treatment of mentally ill patients in Europe and has played a part in the
rise of transinstitutionalization.
19  Deinstitutionalization Versus Transinstitutionalization 301

Following the USA, all European countries that have decreased their psychiatric
beds have seen a rise in the number of forensic beds and detentions of mentally ill
patients. Although deinstitutionalization is partly to blame, it is certainly not the
only cause. The whole shift towards community-based care is a complex phenom-
enon, where different elements play a part in creating a rise in mentally ill patients
ending up in forensic care or worse, prisons.
Importantly, bed closing is insufficiently replaced by well-organized commu-
nity care and suffers from a lack of funding and changes in education of profes-
sionals. Although the closing of beds started off as a way to empower patients and
improve quality of life or in other words to normalize psychiatric care, insufficient
funding and support created inefficient community care that couldn’t uphold its
model fidelity. As such, general psychiatric services failed to reach and efficiently
treat an important part of the chronic patients released from the hospitals, namely,
the ‘difficult to treat’. Patients combining a severe mental illness or personality
disorder with comorbid substance use, low insight and low compliance were
unable to benefit from the new programmes and ended up in prisons and other
forensic settings after dropping out, depending on the quality of the community
network.
The consequences for forensic psychiatric care are important. Not only is there a
greater need for more availability of forensic care, beds if you want, but the profile
of forensic patients will differ greatly from patients in regular psychiatry.
Forensic psychiatry will be faced with difficult to treat patients, in need of life-
long care, suffering comorbid substance use and with failed previous treatment
attempts in regular psychiatry. Many of these elements on top are well-known risk
factors for new juridical contacts [33, 40].
As such, treatment strategies will need to be tailored for these specific
patients and cannot rely blindly on the experiences and evidence base of the
what works literature in regular psychiatry. Already, evidence for community-
based care such as ACT strongly indicates these are ineffective when it comes
to forensic outcome measures, and forensic adaptations are needed [41, 42].
Well-known bases to develop new, forensic, treatment models are the Risk-
Need-Responsivity Model [33] or the Good Lives Model [34]. Motivational
work and substance use will be major targets. Deinstitutionalization has a limit.
Community-based approaches will still need small units of residential care for
short-term crisis interventions, especially given the ‘difficult to treat’ character
of patients.
Differences in legislation and social realities stress the need for local approaches,
when it comes to reducing transinstitutionalization.
Lastly, forensic care is still very much a business of bricks, walls and above all,
risk. It seems remarkable how deinstitutionalization is happening for 40  years
now, yet how little research is available on community-based treatment for men-
tally ill offenders. Many authors have also stressed the importance of new, more
positive outcome measures in the setting of forensic psychiatry, besides risk. This
will be one of the great challenges for forensic psychiatry in the future.
302 T. Marquant and F. Torres-Gonzalez

Conclusion
The deinstitutionalization that sweeps through Europe has shown to have impor-
tant consequences and risks for what kind of patients are at risk to enter forensic
care, the number of forensic beds in countries and imprisonments. This phe-
nomenon is also known as transinstitutionalization. At a closer look, though,
deinstitutionalization is only one element that leads to transinstitutionalization.
Funding, education and, most importantly, how community-based care is orga-
nized are important factors related to the phenomenon of
transinstitutionalization.

Take-Home Messages
• Transinstitutionalization is a real risk for chronic, complex and care-­
avoidant patients.
• Deinstitutionalization is only one of several factors that can lead to
transinstitutionalization.
• How we organize community-based care is one of the main factors related
to transinstitutionalization.

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Ethical Issues in Forensic Psychiatry
20
Paul Cosyns

Mental health-care professionals have a duty to treat all persons with mental disor-
ders with respect of their dignity, human rights, and fundamental freedom. Forensic
psychiatry is a subspecialty of general psychiatry, and its purpose is the care and
treatment of mentally disordered offenders and others requiring similar services,
including risk assessment and management [1]. There is no such thing as “forensic
psychiatric ethics” and the general principles of medical ethics apply. But the prac-
tice of forensic psychiatry is situated at the interface of psychiatry and the law.
These two disciplines have quite distinct roles and rules in society with few interac-
tions. The practice of forensic psychiatry involves mostly three parties, the psychia-
trist, the patient, and the society represented by the justice or penal system. The
person concerned is at the same time a client of the justice system and a patient of
the health-care organizations.
The best interest of the patient is the core business of health-care providers,
while the best interest of society is that of the judicial system. This balance of con-
flicting interests exists also in general medicine when, for example, in case of spe-
cific infections, the physician must notify the relevant authorities of the patient’s
disorder, whether the patient wishes so or not. In case of an involuntary admission
to a psychiatric hospital, psychiatrists play an analogous role. A psychiatric expert
in court works and testifies in the best interest of justice and, doing so, not necessar-
ily in the best interest of the patient. A psychiatrist working in prison must accept a
set of obligations that do not exist in current psychiatric practice. He may have dual
roles and face conflicting situations where the prison’s interests must be placed
above the patient’s and psychiatrist’s interest.
Justice and psychiatry have a distinct frame of reference, but in the field of foren-
sic psychiatry, they must find ways to work or interact together with respect for their

P. Cosyns
Faculty of Medicine and Health Sciences, Collaborative Antwerp Psychiatric Research
Institute (CAPRI), Antwerp University Hospital, University Forensic Centre (UFC)
and University of Antwerp, Edegem/Wilrijk, Belgium

© Springer International Publishing AG, part of Springer Nature 2018 305

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_20
306 P. Cosyns

respective values, finalities, and singularities. All European countries, according to

their own history and cultural background, have different legal implementations of
the same basic ideas to promote the well-being and treatment of prisoners, mentally
ill offenders, or forensic patients in general. Forensic psychiatrists must know and
consider in their practice their national or regional laws and regulations in this
domain. It is also essential that in all cases, the forensic patient should be clearly
informed about any limitations of the confidentiality rule, if any. He should always
know what is likely to happen to information given to the psychiatrist, and it is the
duty of this latter to inform correctly his patient and to obtain his consent.
This chapter will briefly highlight the following ethical key questions in contem-
porary forensic psychiatric practice: confidentiality and its limits, the right to treat-
ment for forensic patients, autonomy of the patient, consent, and coercion.
Complementary information can be found in Ethics in Psychiatry [2], Ethical Issues
in Prison Psychiatry [3], An Anthology of Psychiatric Ethics [4], and Forensic
Psychiatry: Clinical, Legal, and Ethical issues [5].

20.1 Confidentiality

The protection of patient’s privacy and appropriate confidentiality are core values in
psychiatric treatment. It means that personal patient’s information will be carefully
maintained by each health-care professional, regardless the form—verbal, written,
electronic, videotape, and biological—in which this information is held. Confidentiality
is both an ethical professional multimillennial obligation—since the Hippocratic Oath,
400 years BC—and a legal obligation in most European countries. Psychiatrists must
know the laws of their country and comply with them, but in health-care decision-
making, they will also consider and balance the different values present in each case.
Obeying the law does not always guarantee an appropriate ethical treatment decision.
The “European Standards on Confidentiality and Privacy in Healthcare” justifies
as follows the principles of health-care confidentiality [6]:

• Individuals have a fundamental right to the privacy and confidentiality of their

health information.
• Individuals have a right to control access and disclosure of their own health
information by giving, withholding, or withdrawing consent.
• For any non-consensual disclosure of confidential information, health-care pro-
fessionals must have regard to its necessity, proportionality, and attendant risks.

These principles of medicine also apply to forensic psychiatry. A competent

patient can give consent to disclosure of confidential information and exercise con-
trol over the dissemination of the information. Valid consent requires that the patient
has been duly informed about the content, the purpose, and the consequences of the
proposed disclosure. It requires also an adequate comprehension of the procedure
and patient’s freedom to accept or refuse disclosure. Opinions vary if the psychia-
trist is then bound to the disclosure request of his patient. It may occur that the
requested disclosure is not in the best interest of the patient.
20  Ethical Issues in Forensic Psychiatry 307

Family members, acquaintances, or informal carers who are involved in the care
of a patient may understandably request some information about diagnosis, treat-
ment, or management of the health-care problems of the patient. These information
may be in the best interest of the patient by improving their understanding of his
problems and best ways to respond to and deal with his needs. The confidentiality
rule remains, but the therapist can negotiate with the patient which kind of informa-
tion can be disclosed to these persons to obtain that beneficial goal.
When the patient is incapacitated or unable to consent a family member or legal
representative who has the right to give proxy consent must be contacted by the
psychiatrist. Each European country has specific procedures that must be followed
in such circumstances. It is generally accepted that the legal representative has to act
in the best interest of the patient. In case of dispute between the psychiatrist and the
legal representative, the court may be involved and settle the case.
In emergency situations, the psychiatrist may act in the best interest of the patient
and disclose the minimal necessary information to deal with the acute and urgent
situation.
The psychiatrist can never disclose information in the best interest of a compe-
tent patient without his consent, but in exceptional situations, disclosure may be
necessary to protect overwhelming interests of third parties. Exceptional situation in
which the disclosure serves an interest that outweighs the patient’s right to privacy.
Take, for example, situations where the life or integrity (physical, sexual, or psycho-
logical) of a third party is at risk. Without disclosure, there is no possibility of avert-
ing the harm, and disclosure will likely avert the harm. It remains a controversial
issue if the “duty to protect” is also a legal issue, and therapists should inform and
comply with the national laws of their country. It is recommended to therapists
confronted with such a problem to discuss the case anonymously with a colleague
in support of his own judgment. It may also be argued that the disclosure of infor-
mation in such a case may be helpful to both parties: it protects the potential victim
but also the patient in treatment from committing new crimes. It is not the primary
duty of a therapist to prevent relapse, but relapse is obviously not the best interest of
the patient. Treatment and relapse prevention are not per se antinomies.
Concerning incompetent patients, disclosure may be justified to protect them as
victim of severe abuse, for example, sexual abuse.
In any case the health professional should always record all the details of the deci-
sion in the patient’s record and its justification to disclose confidential information. If
possible look for support for patients whose confidentiality is to be breached, and if
possible ensure that the potential victim has access to appropriate support and advice.
Forensic psychiatrists have a double knowledge in psychiatry and law, and
besides their duty to treat mentally disordered offenders, they may be asked to
appear in court as expert witness to give their opinion on specific issues requested
by a judge. All European countries have a specific legal system concerning the con-
cept of criminal responsibility or competence as a prerequisite for punishment. In
case of lack of criminal responsibility, the person will be admitted to a treatment
facility rather than a prison. The psychiatrist in court acts within the law of his coun-
try and accepts the authority of the legal profession. He provides in court his opin-
ion, but the judge or jury takes the decisions. As expert witness he no longer serves
308 P. Cosyns

the best interest of ill individuals but the best interest of the legal system and society.
In this context the forensic psychiatrist faces several ethical issues and must:

• Duly inform the examinee about his role as expert witness, and explain that in
this situation, he is not a health-care provider.
• Inform the examinee that the confidentiality rule is not applicable in this context
and explain the consequences of it.
• Refuse to assess his own patient as expert witness to avoid a conflict of role.
• Get the approval of the examinee (or the court) before interviewing the family,
friends, or third parties to gain more information.
• Present his specialist knowledge as forensic psychiatrist in an understandable
written or spoken language for the judge, lawyer, and examinee.
• Provide objective information focused on the questions asked by the judge and
avoid going outside of this scope.
• Although the expert witness is not a treating psychiatrist, he may inform the
court of treatment needs which are in the best interest of the examinee.

20.2 T
 he Right to Treatment for Prisoners
and the Principle of Equivalence

Physicians and health-care providers have the professional duty to treat patients and
relieve their suffering. Even in the absence of a “legal” right for treatment as such,
the basis of the right of mentally disordered prisoners for appropriate care, as com-
pared with care delivered in the community, can be found in the United Nations
Universal Declaration of Human Rights and the European Convention on Human
Rights and Biomedicine (2006). Since persons who are detained in criminal justice
institutions are no longer free to access treatment for themselves, it is accepted that
providing optimal treatment to them constitutes an ethical and professional obliga-
tion in European countries. Treatment must be defined not only in terms of medica-
tions but also nursing, psychological treatments, and community support.
The Draft Recommendation Rec(2004) of the Council of Europe states that in
penal institutions “…the principle of equivalence of care with that outside penal
institutions should be respected with regard to their health care” (art. 35, Council of
Europe [7]). The European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) also considers the principle of equiva-
lence as fundamental. Forensic health-care services inside as well as outside prisons
should be able to provide medical treatment and nursing care in conditions compa-
rable to those provided outside prison in regular psychiatric facilities.
The CPT is part of the Council of Europe and visits on a periodic basis any places
in Europe where persons may be deprived of their liberty. It provides to the states a
controlling but nonjudicial preventive mechanism to protect persons deprived of
their liberty against any form of ill-treatment. The professional competence and inde-
pendence of the caregivers is stressed in the CPT Standards: whatever the formal
position under which a prison doctor carries on his activity, his clinical decisions
should be governed only by medical criteria (71/72, CPT Standards [8]). Independence
of the health-care staff is indeed an ethical issue because it may conflict with
20  Ethical Issues in Forensic Psychiatry 309

considerations of prison management and security (the dual role conflict). The
assessment of quality and effectiveness of medical work should be done by a quali-
fied medical authority and not by bodies responsible for security or administration.
According to the European Convention on Human Rights and Biomedicine
(2006), the principle of equivalence of care promotes the ideal of “equitable access
to health care of appropriate quality,” but it does not mean “same” care as outside
prison or forensic settings. Specific characteristics of the detention situation are to
be considered. Not all the state of the art treatment modalities or treatment goals are
necessarily possible in prison or forensic settings. Principally the detention in closed
correctional settings is a complicating factor to provide medical and psychological
care and treatment. Treatment programs, protocols, or guidelines from the regular
non-forensic mental health care can generally not be used as such in detention set-
tings but must be adapted to this specific environment. It is easier for medical foren-
sic hospitals to comply to the principle of equivalence than for prison settings due
to the negative impact of the prison culture on treatment possibilities. This is more
obvious for the low level of psychological treatment possibilities in prison and, as
consequence, a higher level of prescription of psychopharmacological drugs.
In many European countries, there is a growing trend to create structural
bridges between the criminal justice system and health-care authorities in order to
improve the medical and psychological treatment of mentally disordered prison-
ers. Providing treatment is not part of the core business of the criminal justice
system or prison authorities. Therefore, we can only hope that the structural inte-
gration of the health-­care authorities in the organizational and financial frame-
work will enhance the overall level of the principle of equivalence. In most
European countries, the equivalence of care remains an object of concern taking
into account cost cuts, the rising number of prisoners and a prison culture that is
not focused on rehabilitation [9].

20.3 Autonomy of the Patient and Consent to Treatment

Mental health-care professionals have a duty to treat all persons with medical or
psychological disorders with respect to their dignity, human rights, and fundamental
freedom. There is a universal agreement about the importance of the ethical princi-
ple of respect for the autonomous choices of persons and the individual decision-­
making in health care, especially informed consent and refusal. The European
Convention on Human Rights and Biomedicine (2006) states this basic right as
follows (art 5): “An intervention in the health field may only be carried out after the
person concerned has given free and informed consent to it…The person concerned
may freely withdraw consent at any time.”
Respect for patient’s autonomy means that the therapist complies with the
“informed consent” doctrine which is threefold in an ethical perspective:

1. The right of the patient to get information on the treatment, and the duty of the
therapist to provide information.
2. The competency of the patient to understand its significance and consequences.
3. The competency of the patient to give his/her consent.
310 P. Cosyns

It is a legal as well as an ethical obligation to obtain patient’s consent, and this

depends strongly on the quality of the relationship between the psychiatrist and
the patient which is of prominent importance in this perspective. The dialogical
process between psychiatrist and patient must convey trust, empathic under-
standing, and emotional support. To obtain consent to treatment is often a first
step in the development of a working alliance necessary for the treatment
process.
In case of an incompetent patient, the psychiatrist must obtain the informed con-
sent of the family, patient’s legal representative, or caregiver according to the legal
provisions of his country. They should act in the best interest of the patient which
means that they should consent to what the patient would have chosen if he/she had
retained decision capacity in the current situation [10]. Even if the patient is incom-
petent and legally unable to consent (say “yes”) or refuse (say “no”), it remains
advised to ask for his/her opinion and to let him/her participate as far as possible in
the treatment decision process. This is an advised preventive measure to reduce the
need for coercive interventions as much as possible.
The principle of patient’s autonomy and consent to treatment is not absolute and
has its limitations. The “Declaration of Madrid” of the World Psychiatric Association
states this as follows: “No treatment should be provided against the patient’s will,
unless withholding treatment would endanger the life of the patient and/or those
who surround him or her. Treatment must always be in the best interest of the
patient.” A patient may refuse a proposed treatment, and the therapist must comply
with it, but in some cases, he is empowered to reverse this refusal. In the next sub-
heading, we will focus on the ethical justification of coercion or involuntary treat-
ment and on the moral rightness of whatever we define as appropriate coercion in
psychiatric treatment.

20.4 A
 bout “Coercive” Measures and “Compulsion”
in Forensic Practice and Correctional Institutions

There is a continuum of possible treatment pressures to influence patient’s

decision-­making about a proposed treatment by therapists. The most common is
“persuasion” that appeals to reason in the patient-therapist dialogical process, fol-
lowed by “coercion” with conditional propositions and “compulsion” and the use
of force.
Coercion is generally linked to conditional propositions, i.e., if the patient accepts
the proposed treatment, the therapist will do something in his interest. Take, for
example, a sex offender who may be released from prison if he accepts community
treatment as an outpatient. This is an “offer,” and if he refuses he remains in prison
which is his current baseline situation. Another example is the psychotic patient who
will be involuntary admitted to hospital if he does not accept medication as an outpa-
tient. This is a “threat”; his future condition will be worse if he doesn’t comply with
the proposed treatment. In both cases the patient feels subjectively that he is not
totally free to take a personal decision and feels some coercion to accept an
20  Ethical Issues in Forensic Psychiatry 311

alternative he would otherwise not have chosen. In any case the proposed conditional
alternative of the therapist must always be in the best interest of the patient.
Compulsion means involuntary admissions to a psychiatric hospital as well as invol-
untary treatment and involves the use of force against patient’s will. It is regulated by
law, and therapists will comply with the laws on patient’s or prisoner’s rights of their
country. The Draft Recommendation Rec (2004) of the Council of Europe “concerning
the protection of the human rights and dignity of persons with mental disorder” states
guiding cumulative conditions when considering involuntary treatment:

• The patient must present a psychiatric disorder stated by a health-care

professional.
• He fulfills the criterion of dangerousness for himself or third parties.
Dangerousness, the risk of violence or threat to physical integrity of third
parties, and the presence of a psychiatric disorder are principal determinants
and prerequisites for involuntary treatment. The threat to the physical integ-
rity of third parties must be linked to the mental disorder of the patient and
not to other environmental or social causes. Health-care professionals are not
competent to treat social deviance as such in the absence of a mental
disorder.
• The rule of the least restrictive alternative must be respected, which means that
no less intrusive means of providing appropriate care are available. A patient
who meets the (legal) criteria for involuntary treatment can avoid it if equal pro-
tection and treatment efficacy can be achieved at a lower level of constraint.
Involuntary treatment must be proportional to the health status and symptomatol-
ogy of the patient, and the therapist will use minimal coercion necessary to
restore or maintain the competence of the patient.
• Even in case of involuntary treatment, the therapist shall take the opinion of the
concerned person into consideration. He gives information about the current
situation to the patient and about what will happen in the short term.
• Involuntary treatment should always be part of a written treatment plan, reviewed
at appropriate intervals, and take place only in an appropriate environment, more
specifically not in a prison but in a (forensic) health facility.

The major ethical justifications of the use of external coercion in treatment are:

1 . The treatment redresses competence in incompetent patients.

2. The treatment reduces the risk of violence toward third parties.
3. The individual patient ultimately benefits from the planned treatment (lack of
treatment will be detrimental for the mental health of the patient).

The proposed treatment must be suitable, beneficial, and effective for the psy-
chopathological problem of the patient. Psychiatric conditions with poor progno-
ses will not improve with coerced therapy, whatever the treatment may be.
Therapists must be aware of the limitations of their therapeutic decisions and/or
programs.
312 P. Cosyns

Reducing the need for coercive interventions in psychiatry is obviously a legit-

imate aim because most patients judge negatively a previous involuntary treat-
ment even though they nonwelded health benefits. This can be achieved by several
ways:

• Therapists must aim for a more active role and involvement of the patient in mak-
ing treatment choices and decisions at each stage of the therapy.
• Initiatives involving the use of “advance statements” by patients seem to be
effective. Take, for example, a patient with a psychosis who anticipates a relapse.
He may state in an “advance directive” his treatment preferences in anticipation
of a future relapse of his psychosis. The patient has then a greater impact on his/
her treatment at the time of psychotic relapse when he may be not capable of
making treatment decisions.
• Coercive interventions on hospital wards such as the use of seclusion or restraint
can be significantly reduced by appropriate staff education and management.

As forensic mental health care also shifts from forensic hospital to the com-
munity, the locus of the provision of mental health services has partly moved to
the community. Take, for example, the coerced or even mandated compulsory
community treatment of substance abusers proposed as an alternative to repeated
inpatient hospitalizations in which involuntary treatment with medication is
often required [10]. Another example is the coerced treatment of sex offenders
released into the community. Even if the patient formally agrees with the
­treatment proposal of hormonal testosterone lowering treatment as a condition,
there is often some form of informal coercion, e.g., if the prisoner wants a con-
ditional release from prison, he must agree with the proposed hormonal treat-
ment [11].

Take-Home Messages
• Forensic psychiatrists have the duty to provide appropriate care to men-
tally disordered offenders or prisoners, i.e., care comparable to those pro-
vided in regular psychiatric facilities.
• The psychiatrist can never disclose information of a competent patient
without his consent, but exceptionally it may be necessary to protect third
parties.
• The psychiatrist expert witness in court serves the best interest of the legal
system and must inform the examinee that the confidentiality rule is not
applicable in this context.
• Reduce as much as possible the need for coercive interventions or treat-
ments in psychiatry.
20  Ethical Issues in Forensic Psychiatry 313

Bibliography
1. Nedopil N, Gunn J, Thompson L. Teaching forensic psychiatry in Europe. Crim Behav Ment
Health. 2012;22:238–46.
2. Helmchen H, Sartorius N, editors. Ethics in psychiatry, European contributions. Heidelberg:
Springer; 2010.
3. Konrad N, Völlm B, Weisstub D, editors. Ethical issues in prison psychiatry. Dordrecht:
Springer; 2013.
4. Green S, Bloch S, editors. An anthology of psychiatric ethics. Oxford: Oxford University
Press; 2006.
5. Gunn J, Taylor P. Forensic psychiatry: clinical, legal and ethical issues. 2nd ed. CRC Press/
Taylor and Francis Group; 2014.
6. European Commission. European standards on confidentiality and privacy in healthcare.
EuroSOCAP Project; 2006.
7. Council of Europe. Draft Recommendation Rec(2004) of the Committee of Ministers to mem-
ber states concerning the protection of the human rights and dignity of persons with mental
disorder and Draft Explanatory report (adopted on 22 September 2004). 2004. www.coe.int.
8. CPT Standards: 71/72. www.cpt.coe.int/.
9. Konrad N. Conclusion. In: Konrad N, Völlm B, Weisstub D, editors. Ethical issues in prison
psychiatry. Dordrecht: Springer; 2013. p. 415–27.
10. Munetz MR, Galon PA, Frese FJ. The ethics of mandatory community treatment. J Am Acad
Psychiatry Law. 2003;31:173–83.
11. Cosyns P, Goethals K. Penitentiary mental health care in Belgium. In: Konrad N, et al., editors.
Ethical issues in prison psychiatry. International library of ethics, law and the new medicine,
vol. 46. Dordrecht: Springer; 2013. p. 145–51. https://doi.org/10.1007/978-94-007-0086-4_7.
Pathways to Radicalisation
and Violent Extremism 21
Thomas Marquant and Norbert Nedopil

21.1 Introduction

Europe has been faced with a recent wave of terrorism. Although the current wave,
at first glance, seems to be novel in respect to extend and background, terrorism and
violent extremism have been around for a long time. In modern times, four large
waves of terrorism have been described by Rapoport: a first wave of anarchism in
1880, a second colonial wave in 1920, a new left-radical wave in 1960 and lastly a
religious wave that started in 1979 [1]. The first wave knows famous protagonists,
such as Bakunin and Kropotkin, and was started in Russia but spread to the USA
and Western Europe as well. Terrorist attacks in those days were mostly aimed at the
killing of high-profile leaders, and the victims included the Empress of Austria and
a King of Italy.
The second wave was built on a basis of anticolonialism and aimed against colo-
nial oppressors. Rapoport described how it started in the 1920s and mostly used a
guerrilla tactic, targeting government officials and military personnel. The IRA was
the most famous amongst them. From this wave on, terrorists did not see themselves
as such anymore and have been claiming to be freedom fighters.
The third wave, built on a far-left extremism, with known participants such as the
Baader-Meinhof group, used hijacking, like in Munich during the Olympic games
of 1972 by a Palestinian group, as a more common tactic.

T. Marquant (*)
Justice Department Belgium, Antwerp, Belgium
University of Antwerp, Collaborative Antwerp Psychatric Research Institute (CAPRI),
Antwerp, Belgium
e-mail: thomas.marquant@just.fgov.be
N. Nedopil
Department of Forensic Psychiatry, Psychiatric Hospital of the University of Munich,
Munich, Germany
e-mail: norbert.nedopil@med.uni-muenchen.de

© Springer International Publishing AG, part of Springer Nature 2018 315

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_21
316 T. Marquant and N. Nedopil

The last wave then started with the revolution in Iran and is described by
Rappaport as being driven by religion. Here, he mentions Islamic groups, Jewish
extremists and also religious sects as protagonists of terrorism. One of these sects,
the Aum Shinrikyo sect, released sarin, a deadly nerve gas, into the Tokyo subway
system, killing 12 people and injuring over a thousand. Rappaport pointed out the
emerging of suicide bombings in this wave. Besides a change of methods, terrorism
became more international, and its leaders recruited foreign nationals in their
groups. This phenomenon has been seen before in history, when foreign fighters
were included in civil and international wars, e.g. in Spain in the late 1930s or in the
war between Finland and Russia in 1939, but is a new phenomenon as a part of ter-
rorism. The phenomenon has been important in Europe, and returned Syria fighters
have been involved in attacks in Brussels and Paris. The international Soufan Group
has presented an overview of the foreign fighters involved in the war in Syria [2, 3].
The report mentions 12,000 foreign fighters from 81 countries, from which 3000
originate from Europe. The majority worldwide comes from Arab countries, with
Tunisia (2500), Saudi Arabia (2500) and Morocco (1500) on top. In Europe, France
(700), Germany (270) and Belgium (250) represented the majority of fighters, and
400 fighters left from the UK.
Terrorism is not a new phenomenon, and it is not restricted to Europe. Of the
2201 terrorist attacks between 2005 and 2013, which killed more than 10 people, 25
were committed in Europe, most of them in Russia and Turkey [4]. Also, diverse
ideologies have been used to justify terrorism as a strategy.
Interestingly, all terrorist groups eventually vanish [5, 6]. The authors reviewed
648 terrorist groups between 1968 and 2006. They found two main reasons for ter-
rorist groups to end. Forty-three percent of them eventually joined the political pro-
cess, 40% were arrested, or key members were killed by police or intelligence
services. The authors stress that only 7% of terrorist groups were terminated by mili-
tary force. Ten percent of the terrorist groups eventually succeeded in their goals,
larger groups being more successful than smaller ones. Religious groups were the
most tenacious, and only 32% of them end, whereas 68% of the total group eventu-
ally ended. On the other hand, no religiously motivated group achieved its goals.

21.2 Part 1: General Determinants of Radicalisation

From the point of view of psychiatry and psychology, the research questions centre less
on the military and political dimensions but more on the roots of radicalisation and
extremism in individuals and groups and on the assessment of individual terrorists.
In the first part of this paper, the determinants of radicalisation for members of a
community are investigated and specifically the interaction of individual disposition
and group dynamics in this process. An overview of the main determinants is given
by Koomen and Van Der Pligt [7] in the following schema, which we will use to
address each of the determinants (Fig. 21.1).
21  Pathways to Radicalisation and Violent Extremism 317

Fig. 21.1 Main Culture Polarisation Radical

determinants of Radicalisation Groups
radicalisation, with Threats
Stereotypes
permission from [7] Social
Prejudice identity
Extremist
Isolation Individual ideology
factors

Prevention

21.2.1 The Foundations of Radicalisation

The roots of radicalisation has a strong base in a specific social environment: isola-
tion, stereotypes and prejudice all interact to create negative meta-­stereotypes,
implicit or explicit, which lead to mistrust amongst minorities and majorities in a
mutual way. The media often fuels these stereotypes [7, 8].
There is some indication, that interaction between groups can mitigate prejudice,
on a quantitative level (intensity of contact) and qualitative level (quality of the
contact). This is known as the social contact hypothesis. Basically, this means that
when living in a mixed neighbourhood, social contacts are more frequent and more
likely of a higher quality, both reducing prejudice and stereotypes [9, 10]. If this
potential of contact is not available, the pathway to radicalisation by aversive stereo-
types is more open and easier to enter. This effect is stronger in the majority than in
the minority groups. Socio-economic status is related to terrorism in an unexpected
way. Poverty as such is surprisingly negatively correlated to an inclination towards
terrorism, as was shown in Muslim minorities in Britain and Israel [11, 12]. Possible
explanations might be that a higher status provides the knowledge, interest and
opportunity to engage in politics [7]. Or maybe, deprivation can be perceived in a
relative way, and even wealthy members of minorities might still feel deprived when
they compare themselves to the members of the majority.

21.2.2 Threats

A threat can be perceived when a minority feels subdued by a majority or a gov-

ernment [7]. The threat can be either at an interpersonal or at an intergroup level,
the latter being more common in the field of radicalisation. The notion of threats
is closely related to the injustice framework from Slootman and Tillie [13]. Just
like the threats, they found that radicalisation in an Amsterdam population, for
example, was strongly influenced by a (perceived) injustice towards themselves or
their in-­group. Slootman and Tillie [13] distinguishes four levels of analysis
(Fig. 21.2).
318 T. Marquant and N. Nedopil

Frame of reference for violent extremism

POLITICAL level
Haves and have-nots
Example: Minority groups in society that experience a relative difference of wealth
in society
Ideological level
For-and-against
Example: Especially relgion delineates very strict between believers and non-
believers
Cultural/ social level
In/ out groups
Example: Bullying at school as a precursor of peer-rejection and subsequently the
incident of a school shooting (loner)
Personal level / grievances
Getting back (revenge)
Example: Relationships and break-ups can lead to perceived homogeneity of the
group where the partner belongs to and subsequently revenge is projected onto
the entire group.

Fig. 21.2  Injustice framework of reference [13]

21.2.3 Individual Factors

There is no evidence to support that personality disorders relate to radicalisation [7].

Mental illness as such has been reported to be rare in the process of radicalisation [14].
Yet other, more specific personality traits might however have relation to radicalisa-
tion, such as social dominance orientation or an authoritarian orientation. Both are
rooted in a conservative and traditional orientation, which could be a reason why
Islamic cultures or right-wing radicalisation might have it as a precursor. Sensation
seeking might be an element to consider also, as well as a male gender [7]. Some of the
more common dispositions are fearlessness, boldness and an affinity to weapons [15].

21.2.4 Social Identity

Belonging to a group creates a social identity [16, 17]. Two aspects are important
here. First, how important it is for the individual to belong to a group and second how
much value he gives to the group he belongs to [7]. In order to achieve this, the group
has to have a positive image, and to stand out amongst other groups, and has to lend
its positive image to its individual members. This feeling of belonging is a dynamic
feeling that changes over time. When groups are under a threat, perceived or real, the
sense of this standing out of a group becomes more important. This in turn strength-
ens the importance of the group. When such a group feels threatened, group coher-
ence becomes more important and might become a source for more radical ideas
[18]. The most common mechanism in these group dynamics seems to be greed, fear
and the experience of injustice, deriving from being chronically underprivileged or
acutely by incidences incurred by members of the in-group causing frustration and
21  Pathways to Radicalisation and Violent Extremism 319

anger [19, 20]. In Holland, for example, people with a Turkish background identified
more strongly with their Turkish roots than with their Dutch background and even
more than the Dutch people did with their Dutch identity [21, 22]. The identification
with a minority group under threat further increases the in-group vs. out-group polar-
isation and the prejudices towards the out-group, which is then seen a homogenous
crowd. This crowd differs considerably from the in-group, with which the individual
feels a lot of communalities. Minority groups tend to resist assimilation and will
perceive being a minority as a threat to their social identity [7, 22, 23]. The emphasis
on differences can become particularly vulnerable to exaggeration if the values con-
cerned are considered to be fundamental or if the perceived threats target stereotypes.
From polarisation to radicalisation is then only a small step. Minorities might be
perceived as unintelligent, while majorities could be perceived as racist. In severe
cases, groups start to dehumanise others. Homogeneity and dehumanisation are
important dynamics that can justify involving innocent victims into an attack.

21.2.5 Ideologies

Some ideologies offer a world view that can generate and justify certain goals [24].
These ideologies offer the notion that something is seriously wrong in this world,
and the ideology explains how things should be [7]. Ideologies like religion, nation-
alism and some other political ideologies offer certainty and diminish uncertainty.
Experienced injustice or ‘threats’ render people more inclined towards ideologies
that reduce uncertainty [25].
Koomen and Van Der Pligt [7] lists hierarchy, fatalism, violence and honour as
ideological elements that relate to terrorism. The way people look at hierarchy
and tolerate a power distance towards people with power differs throughout cul-
tures. Autocratic societies or groups with a rigid hierarchy are more susceptible to
being radicalised through powerful leaders [26]. Fatalism, which externalises
responsibility to a God or a powerful leader, is more prone to justifying violence
through this entity and to ignoring individual responsibility. Cultures having
higher rates of violence are more prone to encouraging violent and terrorist
actions [27]. Honour, if hurt, calls for retaliation and personal or group vengeance
[28]. Research has shown that, for example, people in the southern States of the
USA, in Arab cultures and in American minorities are susceptible to radicalisation
because of their honour culture and will more easily turn to violence when their
honour is threatened [29].

21.3 P
 art 2: From General Determinants
to an Individual Pathway

From these general determinants, we can conclude radicalisation as a process that is

largely driven by group dynamics, which are linked to a social identity, perceived
injustice, being threatened or offended or experiencing the suffering of members of
320 T. Marquant and N. Nedopil

the in-group. Isolation, stereotype and prejudice free the way for perceived threats
towards a minority group, which will mould the social identity of the people in this
minority at a group level.
In the next part, we will describe a radicalisation process on a more individual level;
on the individual level, several pathways have been described. Most of them imply a
linearity of the pathway. We know, however, that this is not always the case, and many
terrorists have never been radicalised or vice versa [5, 30]. There are many ways and
many reasons to end up a violent extremist. Different pathways can lead to radicalisa-
tion (equifinality), and different individuals on a same pathway can have different out-
comes (multifinality) [31, 32]. We will describe two linear pathways and contrast them
to the ‘cyclical complexity model’ from Dean [33].

21.4 Linear Models

21.4.1 Staircase Model of Moghaddan

The staircase model of Moghaddan was developed for radicalisation in Muslims.

The model is designed like a staircase that spirals through six floors, narrowing as it
goes up [34]. The ground floor, according to Moghaddan, consists of the majority of
people, asking questions about their position in society and about the fairness of
their situation. People move up to the next levels through serious dissatisfaction,
mostly related to the injustice framework described earlier [13]. In the second floor,
they become open to externalising the reason for their perceived injustices, mainly
towards the Western world or the USA. From there, a pathway is further described
towards isolation, through a cognitive narrowing of the attention focus and a fixa-
tion on radical interpretations of an ideology. The last step consists of adding capa-
bility factors, such as combat training or weapon training.

21.4.2 NYPD (New York Police Department) Four-Stage Model

According to Dean, this is the most widely used model to visualise the pathway
towards extremism in the context of Islamic extremism. The model consists of four
phases, as presented in Fig. 21.3 [35, 36].
In the first stage, called pre-radicalisation, many of the individuals involved have
normal lives. In the second stage, due to specific causal factors, a person starts to
increasingly identify with Salafist ideas, which shows a disconnection with their pre-
vious lives and increasing association with new and like-minded individuals, adopt-
ing the extremist ideology. In the third phase, we see an intensification of the ideology,
through the influence of peers or sometimes through social media. The last step
21  Pathways to Radicalisation and Violent Extremism 321

PRE-RADICALISATION

Causal factors Injustice frame-work

SELF-IDENTIFICATION
(Brain narrowing)

Commitment factors Disconnect-reconnect

INDOCTRINATION
(Brain hardening)

Capability factors Knowledge/skills/training

JIHADISATION
(Brain washing)

Fig. 21.3  NYPD-FBI/four-stage model of radicalisation [35]

involves a jihadisation, mostly when a person gains specific skills, such as combat
skills, or learns how to operate weapons. These are called capability factors.

21.5 Nonlinear Models

21.5.1 Cyclical Complexity Model

The cyclical complexity model was designed by Geoff Dean and portrays extrem-
ism on a spectrum of intensity. According to this model, the individual moves
through several ‘pivotal points’, each driven by distinct motivations and combina-
tions of push/pull factors or inhibiting/constraining factors. The pathway looks like
a spiral, where the individual goes through the different pivotal points, which either
lead to extremist thinking or away from it. The pathway relies on a ‘mental path-
way’, which consists of distinct phases in time, namely, an ‘entry’ phase, an
‘engagement’ phase and a ‘disengagement’ phase (see Fig. 21.4). The mental path-
way is composed of four cognitive phases: cognitive opening (identification),
rewiring (intensification), cognitive mindset (rigidification) and exiting
­
(disillusionment).
322 T. Marquant and N. Nedopil

= Pivotal point
Cognitive indicators

Behavioural indicators

Cognitive mindset

Push factors
Cognitive opening

Pull factors

Cognitive exiting
Cognitive rewiring

Entry Engagement Disengagement

period period period

Fig. 21.4  The cyclical complexity model by Geoff Dean (adapted for this chapter) [33]

The strength of this spiral shape is that it allows for a large array of dynamics
through the different stages and allows stages to be skipped or to go backwards. The
model offers a good way to visualise in a very dynamic way the pathway through
the stages leading up to radical thinking and the acceptance of the use of violence.
We will go into the different phases using a case study.

Case Study (Abdel)

Entry Period
Abdel was born in 1980 in a family of Moroccan descent in Belgium and
had a Belgian nationality. His family was religious, yet not fanatic or radical.
His mother is a housewife, and his father had a steady job. Abdel was the
eldest child and has three sisters. He did not finish school and started to work
at young age and mostly in bars. He did not go to the Mosque and did not live
by the five pillars of Islam. He drank alcohol and had poor knowledge of writ-
ten Arabic. He had relationships with Western women. Abdel can best be
described as an open character with a liberal attitude. He had no
convictions.
For him, the first pivotal point came, when a relationship broke and his
father died at about the same time. He later described how things changed,
as he became aware of his Muslim background and how he started to iden-
tify with the worldwide fate of Muslims. When this happened, he stopped
working and started to see a psychologist. The death of his father changed
21  Pathways to Radicalisation and Violent Extremism 323

his position in his family. He changed his behaviour and appearance.

Abdel went to the Mosque, lived according to the Hadith and married a
Muslim woman according to tradition. The Muslim society in his home-
town was well connected and had a strong everybody-knows-everybody
structure. Abdel is strongly influenced by the Muslim community of his
hometown.
In this case, Abdel enters the pathway through a series of events that
together create a pivotal point towards a more radical thinking. These
events tip the balance towards a ‘cognitive opening’ and lead to his deci-
sion to enter the pathway. Push factors are the separation from his girl-
friend and the death of his father. The most important pull factor is a general
identification with his in-group, which then drives him into a more radical
environment. Indeed, in many cases the main influence to radicalisation
comes from the neighbourhood and the Salafistic scene in the vicinity [37].
Sageman [38] states that 68% of the 168 jihadi he interviewed said friend-
ship was the main facilitator to joining a jihadi group. At this entry stage,
important behavioural indicators of an ongoing radicalisation can be
observed [31, 32, 39]. A large study done by the National Counterterrorism
Center (NCC) detected 70 behaviours associated with violent extremism,
with 16 of them appearing in over 50% of the cases [40]. An overview is
given in Fig. 21.5.

Mobilisation behaviours Percentage of cases(%)

Communication/ links to extremists 91
Consumption of jihadi videos/ propaganda 91
Pursuit of religous instruction 86
Suspicious travel (location) 86
Expressed acceptance of violence/ mrtyrdom 82
Weapons training 77
Expressed perception of exist. Threat to Islam 73
Effort to obtain weapons 64
Membership extremist radical groups 59
Use of cover terms to mask true meaning 59
Attempted /desired foreign travel 59
Internet research for target selection,… 55
Suspicious travel patterns 55
Isolation/ rupture with family 55
Participation in vlogs, chatrooms,… 50
Active role of leadership 50

Fig. 21.5  Top violent extremist behaviours

324 T. Marquant and N. Nedopil

Engagement 1
Abdel found substantial support in his new environment and opened to the
idea of action. Salafist ideology became increasingly important to him and
started to dominate his thinking and living. Especially one Internet forum,
with a strong Salafist base, exposed him in an intense, repeated and prolonged
way to violent extreme thinking and prepared his mind for action. This forum
is predominantly militant and less religious. The discussions they have are
largely political, and the religious arguments reveal a poor interest or knowl-
edge of the religion but using it as a basis for militancy. To this day, Abdel’s
knowledge of his religion has been limited and mostly concerned with a return
to a romanticised past of the Muslim culture. His interpretation of religion is
that one has to demonstrate faithfulness to his religion. Through this forum,
he came into contact with people who were planning to join the fight in
Tsjetsjenia, and he became one of the founding members of an extremist
organisation that wanted to rally people for the support of Muslims in areas
of conflict.
His engagement phase consisted of two factors: (1) the Internet putting
him into contact with people who offered capability factors and (2) being the
more important one; Abdel’s life and attention were completely absorbed by
the Salafist ideology. This and the creation of an organisation devoted to the
rallying of young Muslims into the fight were the important pull factors of the
second pivotal point towards further radicalisation: At this point, almost no
inhibiting factors were left, he was disconnected from his family, and his
world was dominated by other Salafist followers. The indoctrination through
the Internet and through his Mosque remained the most important push fac-
tors at this stage.
Engagement 2
At this point, one of the main characters of the Internet forum started
leaking their plans of going to Tsjetsjenia, and all members of the forum
were arrested. After 6 months Abdel was acquitted and went home, where
he faced a hostile world. His neighbourhood started to shun him, and peo-
ple who had supported him previously avoided him now. He became iso-
lated, and his return to his community turned out to be another pivotal
point. He was driven into the arms of his Salafist friends and of the new
group he was a co-founder of. The group became more militant, and after
its leader was imprisoned, attendance to all meetings of the group was
expected. Abdel had lost all connections to his old world and felt rejected.
He left for Egypt to attend a training in combat and weapon-handling.
From there, he set out for Syria to join the Islamic State, now strongly on
the rise there.
In this second stage of the engagement, the dynamics of the first phase
were reinforced, and the element of capability was added at this crucial piv-
otal point when Abdel went to Egypt for training. It was the last step in his
21  Pathways to Radicalisation and Violent Extremism 325

jihadisation. The push factors, which drove him towards action and made him
travel to Syria, were a pending sentence in Belgium and the reaction of his
home community after prison. Pull factors were the fate of Muslims in Syria
and the romanticised idea of the Islamic State as portrayed through Internet
propaganda.
Disengagement
After his arrival in Syria, Abdel was disappointed with the situation
there. There was fighting, living conditions were poor, food was short, and
housing was miserable. Many of the fighters had come for opportunistic
reasons, and there was no commitment and no leadership in many instances.
He was forced to trainings and to prepare for fighting. He became disillu-
sioned and wanted to leave. But that was forbidden and proved to be diffi-
cult, but after 3 months, he was able to escape and to return to Belgium.
There he needed to hide now and found refuge with a friend where he lived
for almost 3 years before being arrested again. He was convicted for a total
of 15 years for his plan fight in Tsjetsjenia and for his participation in IS
actions in Syria.
Abdel entered the disengagement phase through a pivotal point in Syria,
where he had to face the reality of the Islamic State, its poor organisation and
its contrast with the propaganda. With this a very important pull factor van-
ished. The disinhibiting factors became more important. He realised that he
was more a part of his home country and more attached to his family than he
thought. But this might not be the final outcome, since he was now impris-
oned, and we know that prison can be a strong push factor, as prison is a
known risk factor for radicalisation.

21.6 Part 3: Terrorism and Forensic Psychiatry

Individuals who have committed terrorist acts often have been through similar path-
ways as described, but most of them differ considerably from the clientele seen by
psychiatrists for assessment for criminal courts and for treatment or risk assessment
after conviction. Most terrorists did not have a criminal history or an antisocial life-
style, most of them did not suffer from mental illness or from drug abuse, and many
do not even come from a disadvantaged background and very few signs of personal-
ity disorders. This raises the question whether forensic psychiatry is the adequate
profession to occupy itself with individuals accused of terrorism or convicted for a
terrorist attacks or for belonging to a terrorist group. One important warning is nec-
essary before we continue to discuss the role of forensic psychiatry in dealing with
radicalised individuals who commit terroristic crimes or others who have done so in
the past: Terrorism is not a mental disorder, terrorists might be seen from different
angles and might appear strange to our societies, and maybe some do have mental
problems, but it is rare that these problems are the cause for terrorist violence.
326 T. Marquant and N. Nedopil

The reasons for including the competence of forensic psychiatrists into the study
of terrorism are twofold:

1. Forensic psychiatrists are experts in assessing, understanding and interpreting

the biographies of offenders or other individuals who transgress the norms of
established societies and by that come into contact with the criminal justice
system.
2. An increasing number of people are convicted not only for committing terrorist
acts but for belonging to terrorist groups or for supporting them. In many coun-
tries of Europe, their probational release depends on a risk assessment. Quite
often this assessment has to be accomplished by forensic psychiatrists.

Another problem arises from this professional obligation: The individuals con-
cerned differ according to age, the group they belong to, the form of terror they
executed and many other aspects. Even though most of them are male, the number
of female suspects has increased dramatically in the last 3 years in Europe [41].
Because of these many differences between the individuals concerned, there are
only few common features and almost no empirical knowledge, which can be used
to assess the risk and to answer the question whether a suspect will commit a ter-
rorist act or whether someone convicted for a terrorist act will repeat his offence.
Even if there are some characteristics which might be applicable to demonstrate
the involvement with terrorism, none of these have been shown empirically or
statically relevant, and everything we know and apply is derived from case studies
and individual experience. But knowing these characteristics might help to con-
sider the knowledge available, while the awareness of lack of empirical data
should caution the assessor and should be made transparent to the deciding
bodies.
The literature cites the following characteristics which should be examined when
doing risk assessments.
The Violent Extremism Risk Assessment (VERA, [14]) advises to consider the
following areas of interest:

1 . Beliefs and attitudes, e.g. ‘Victim of injustice and grievances’.

2. Context and intent, e.g. ‘Anger and expressed intent to act violently’.
3. History and capability, e.g. ‘Network (family, friends) involved in violent action’.
4. Commitment and motivation, e.g. ‘Driven by moral imperative, moral

superiority’.
5. Protective factors, e.g. ‘Family support for non-violence’.

McCauley and Moskalenko [42] consider these categories as relevant for risk
assessment:

1. Personal grievance
2. Group grievance
3. Slippery slope
21  Pathways to Radicalisation and Violent Extremism 327

4 . Love for someone already radicalised

5. Risk and status to be attained
6. Unfreezing by loss of (previous) social connections

If these categories are combined with the narratives, which form the basis of
Salafist self-identification in Europe, or with a more general narrative for terrorists
published by Leuprecht et al. [43], the important risk factors extracted by Monahan
[15] seem to be quite plausible. The narrative of Salafists in Europe could be under-
stood like that:

We were suppressed and expelled, tortured and killed in our home countries
(first, i.e. the Kosovo or Chechenia, and later it was Iraq and Afghanistan), and
the local non-Muslims and its Western allies were cruel and unforgiving. Our
Muslim brothers and sisters suffered and still suffer terribly because of their
religion. The secular world and especially the capitalistic West support this tor-
ture and suffering. They invented the lie of weapons of mass destruction to
occupy our home country and kill our men, rape our women and urinate on our
holy scriptures. They use drones to kill peaceful farmers, women and children in
Afghanistan, they kidnap our leaders and torture them in Guantanamo, and they
don’t even try to punish those who commit these crimes. They believe they are
allowed to do everything without being held accountable for their crimes.

Leuprecht et al. [43] condensed at following more general and more consequen-
tial narrative:

We (i.e. our group, however, defined) have a glorious past, but modernity has
been disastrous, bringing on a great catastrophe in which we are tragically
obstructed from reaching our rightful place, obstructed by an illegitimate civil
government and/or by an enemy so evil that it does not even deserve to be called
human. This intolerable situation calls for vengeance. Extreme measures are
required; indeed, any means will be justified for realising our sacred end. We
must think in military terms to annihilate this evil and purify the world of it. It is
a duty to kill the perpetrators of evil, and we cannot be blamed for carrying out
this violence. Those who sacrifice themselves in our cause will attain glory, and
supernatural powers should come to our aid in this struggle. In the end, we will
bring our people to a new world that is a paradise (p. 265). These narratives com-
bined with the known risk factors listed above show the following aspects as
most common and most relevant ones, if we have to assess the risk of individuals
or groups for committing terrorist acts (see also [15]).

21.6.1 Ideology

Saucier et al. [44, p. 256] define an ideology they term militant extremism as ‘zeal-
ous adherence to a set of beliefs and values, with a combination of two key
328 T. Marquant and N. Nedopil

features: advocacy of measures beyond the norm (i.e., extremism) and intention
and willingness to resort to violence (i.e. militancy)’.

21.6.2 Affiliations

People who commit terrorist acts tend to associate with other people who commit
terrorist acts [45, 46]. These groups are distinguished by a hostility towards indi-
viduals who are not members of one’s own group, with altruism within the group,
i.e. benefitting in-group members at a tremendous cost to oneself. But they also
exert massive social pressure towards sacrificing oneself for the benefit of the group
and for a common martyrdom.

21.6.3 Grievances

Grievances either through personal or group trauma and frustration, particularly in

the form of the loss of loved ones due to military actions or to actions of a majority
against a minority—in general by those perceived to be enemies—may be an under-
valued individual risk factor for terrorism. Grievances may be particularly potent
risk factors for terrorism in ‘cultures of honour’ [47] in which ‘men are sensitive to
a cultural script in which aggression is used to restore threatened manhood’ [48].
Personal traumas and frustrations could encourage a ‘collectivistic switch’ to a
terrorism-justifying ideology because the latter may afford a means for restoring the
lost significance occasioned by various unsettling events. Besides, terrorism-­
justifying ideologies may afford a relatively simple means of substantial significance
gain and attainment of a hero or a martyr status in the eyes of one’s community.

21.6.4 Moral Emotions

Moral emotions is a term used when one group (most probably the majority group)
violates one’s own group’s ‘sacred values’ [49]. Tetlock [50] defines a sacred value
as ‘any value toward which a moral community proclaims, at least in rhetoric, an
unbounded or infinite commitment’. The expressions of these emotions are anger
and disgust. Such a violation cannot be compensated with material values, and the
emotions even might call for retaliation if monetary compensation is offered.

21.6.5 Caveat

It is, however, not adequate to base a risk assessment only on the evaluation of these
four aspects; many other influences can play a role to substantiate risk. It is there-
fore not only worthwhile but indispensable to always consider the general theory
and practice of risk assessment which obliges the assessor to take a number of vari-
ables and contextual factors into account [51, 52].
21  Pathways to Radicalisation and Violent Extremism 329

Conclusion
Terrorism and violent extremism have been around for a long time in different
waves. The most recent of them has confronted new generations with its devas-
tating effects worldwide. Next to the fear and anger created by the violent attacks,
it has also widened the scoop for a lot of people, confronting them with a glo-
balised world and the consequences of migration, culture and the mix with dif-
ferent religions and ideologies. Next to a military response, this has sparked the
interest into the psychological mechanisms of radicalisation and the question
how people turn towards extremist interpretations of specific ideologies and
eventually become open to the idea of using violence. It can be hoped these
insights could be helpful in the prevention of terrorist attacks or actions.
In this chapter, we’ve explored the main theories offered in the literature that try
to describe a person’s pathway towards extremism and eventually violence. At first,
we looked in the main determinants of radicalisation, such as socio-economic situ-
ation, individual characteristics, group dynamics and ideology and culture.
It is important that amidst these different determinants, it is the sense of the in-­
group being under threat and the (perceived) injustices towards the in-group that
fuel and start up the cognitive opening towards extremism and violent extremism.
Second, we described linear and spiralling pathways towards radicalisation
and violent extremism. We were especially interested by the cyclical complexity
model, designed by Geoff Dean, which sees a person go through three main
stages, being an entry period, an engagement stage and possibly an exiting stage.
People mainly move through the pathway at different speeds and mostly through
‘pivotal points’, which can be described as clusters of events that either push and
pull a person towards further radicalisation or which can inhibit the further tra-
jectory. Interestingly, mainly the first stag offers visible changes in the behaviour
and interests of a person and might offer preventive actions, if required.
In a third part, we try to summarise the knowledge gathered by experience,
case studies and literature review to make it applicable for specialists who have to
deal and to take responsibility in managing the risk of the individuals, who come
to the attention of the respective authorities. Besides applying the general knowl-
edge and practice of risk assessment for violence, specific aspects should be
examined and evaluated, namely, adherence to an ideology of militant extremism;
affiliations with other terrorists; grievances about lost honour, meaning, identity,
loved ones either individually or as a group, one belongs to; and moral emotions,
like anger or disgust, because one’s own sacred values have been violated.

Take-Home Messages
• Not all extremism leads to violent extremism and ideology rarely leads to
extremism.
• Forensic setting, e.g. prisons, play an important role in the pathway towards
radicalisation.
• Being able to understand the pathway towards radicalisation can improve
detection and ways to tackle the issue more efficiently.
330 T. Marquant and N. Nedopil

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Recommendations to the Practice
of National Teaching, Training 22
and Research

Kris Goethals

22.1 Teaching and Training

22.1.1 Legal Frameworks

For us as trainees in forensic psychiatry and psychology and forensic psychiatrists

and psychologists, these frameworks are a bit ‘exotic’ but pivotal in understanding
our profession. First of all, we have learned about the differences and similarities of
adversarial and inquisitorial systems of trial and investigation in criminal proce-
dure. The outcome of a trial is fair and just by the way in which lawyers, psychia-
trists and psychologists and others work together within the giving system.
Collaboration and communication with other disciplines is crucial. Next, training
has to include legislation, both national and international, and ethical issues. We
have to learn from mistakes that were made in the past. Networking among forensic
mental health professionals has to be encouraged. Also we have to be aware of the
legal approaches to criminal responsibility of mentally disordered offenders in
Europe. These differences in responsibility may hinder the exchange of knowledge
and best practices concerning forensic assessment among European forensic
­psychiatrists and psychologists. But as placement of patients is usually done on
treatment needs and the level of dangerousness, and not on the basis of (the degree)
of responsibility, mainly in theory, forensic psychiatrists and psychologists should
also be aware of new developments in legal systems across Europe, since it affects
their daily practice. Forensic psychiatry and psychology increasingly has to deal
with questions which fall outside the area of professional expertise. And finally, we
cannot practice forensic psychiatry and psychology without the influence of the

K. Goethals
University Forensic Cente (UFC), Antwerp University Hospital, Edegem, Belgium
Faculty of Medicine and Health Sciences, Collaborative Antwerp Psychiatric Research
Institute (CAPRI), University of Antwerp, Wilrijk, Belgium
e-mail: kris.goethals@uza.be, kris.goethals@uantwerpen.be

© Springer International Publishing AG, part of Springer Nature 2018 333

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7_22
334 K. Goethals

European Court of Human Rights and the European Convention for the Prevention
of Torture.

22.1.2 Service Provision and Frameworks

We have learned that process mapping provides a quick visual reference tool for
understanding offender-patient pathways through the legal and clinical systems.
And it may have applications for information leaflets for patients and their relatives
and for fellow professionals. The pathway mapping also shows the extent to which
we are similar or may differ in where services are provided. Research comparison
of outcomes given these inherent differences would be a useful exercise. Whatever
the funding system (public health and/or justice) and service provision are, equiva-
lence and continuity of care should be guaranteed.

22.1.3 Specific Skills

Language can be a barrier to clinicians’ international profession mobility, their abil-

ity to integrate with clinical teams and to communicate with patients. The domi-
nance of English in the scientific community may be also a barrier to participate in
scientific debate and dissemination of knowledge among non-native English speak-
ers. An easier way to get experience in other countries is to work in countries with
the same language, for example, exchange of the Dutch-speaking part of Belgium
with the Netherlands or the German-speaking part of Switzerland with Germany or
Austria.
Sound forensic psychiatry and psychology includes multidisciplinary teamwork.
Multi-agency working in forensic psychiatry and psychology is defined as the com-
ing together of people from different professional backgrounds, organizations and
services, sometimes with varying primary purposes, such as safety, harm reduction
and mental health care. Their common aim is then improving public safety and
decreasing an individual’s risk of harm to others. Several countries do not have this
multi-agency working. Experiences from countries that have it can help these coun-
tries to set up this paramount collaboration.
We should always keep in mind that a strict distinction between the role of a
treating clinician and expert or a dual role of a treating clinician and expert in one
profession is an absolute must. Both approaches have its advantages and disadvan-
tages. By visiting professionals in other countries, we can put into perspective each
of these approaches.
Forensic psychiatrists and psychologists should have an in-depth training in
­psychotherapy. Some specific forensic psychotherapeutic themes should also be
taught and trained by experienced professionals. The institution where forensic
­psychotherapy takes place presents an important environment that has a crucial
impact on the therapeutic and work climate for all those involved.
22  Recommendations to the Practice of National Teaching, Training and Research 335

22.1.4 Teaching and Training

Forensic psychiatrists and psychologists require expert knowledge and skills which
must be gained through formal learning and apprenticeship. Major teaching themes
in forensic psychiatry and psychology are:

1 . Mental health legislation and the interface between mental health and law
2. Risk assessment and management but also the validity and usefulness of risk
assessment instruments
3. Professionalism and ethics
4. The clinical expert/witness training

Traditional and modern methods of teaching can be utilized by teachers of foren-

sic psychiatry and psychology. Pan-European bodies offer the opportunity to
improve training and education by facilitating the exchange of ideas and
experiences.
Forensic psychiatry is, across European countries, variously a specialty, subspe-
cialty or development within medicine. For quality reasons, it is important that
forensic psychology should also have specialist training in the field. People collabo-
rating in residential Ghent group seminars have substantially improved their knowl-
edge of their own country’s practices as well as those in other European countries.
It is important to incorporate southern and former eastern European countries into
these seminars.
Professional with contributory expertise [1] should collaborate with those with
interactive expertise. In general it is better for expert clinicians to take on the ulti-
mate leadership role in accordance with ultimate responsibility, with the support of
business managers rather than the reverse. All forensic mental health services need
to maintain a continuous culture of learning so as to be open to new developments.
Empirical evidence may hardly give answers to the questions which treatment
approaches should be considered state of the art in forensic psychiatric and correc-
tional settings, certainly not in relation to a specific patient. Empirical evidence
demonstrates that, when comparing two groups treated in different ways, signifi-
cantly more patients have a positive outcome in one of the groups. Unfortunately we
are still not close to answering questions like ‘what works with whom, in what
contexts, under what conditions, with regard to what outcomes and also why’.
Therefore (translational) research in forensic psychiatry and psychology should be
encouraged and funded in an appropriate way.
Risk assessment tools should be implemented in all European countries. Risk
assessment should explicitly include both risk factors and protective factors.
Training of prison mental health caregivers should become a prerequisite for medi-
cal staff and other caregivers working in European prisons. National and interna-
tional research on psychiatric prevalence in prisons and on prison mental health care
as well as on violence must be increased. The European Research Council should
urgently add this topic to their list of research themes.
336 K. Goethals

22.1.5 Capita Selecta

We should conceive a task force with delegates from the UEMS Section of Psychiatry
and the EPA Section of Forensic Psychiatry together with interested trainees in
forensic psychiatry from the EFPT.  Its tasks could be to define priorities, shared
needs and common goals on a European level. Next it should initiate, develop and
support further Europe-wide research in forensic psychiatry and psychology to con-
solidate the scientific basis for the discipline. And finally, it can become a compass
for all stakeholders involved, an exquisite body to develop standards for training,
education and continuous professional development.
All forensic psychiatrists and psychologists should know the phenomena of dein-
stitutionalization and transinstitutionalization. Transinstitutionalization is a real risk
for chronic, complex and care-avoidant patients. Deinstitutionalization is only one of
the various factors that can lead to transinstitutionalization. How we organize com-
munity-based care is one of the main factors related to transinstitutionalization.
Forensic psychiatrists have the same ethical guidelines as general psychiatrists.
He can never disclose information of a competent patient without his consent, but
exceptionally it may be necessary to protect third parties. The psychiatrist expert wit-
ness in court serves the best interest of the legal system and must inform the patient/
examinee that the confidentiality rule is not applicable in this context. It is our duty
to reduce as much as possible the use of coercive measures in forensic psychiatry.
Forensic psychiatrists and psychologists should have knowledge about terrorists.
The reasons are twofold. They are experts in assessing, understanding and interpret-
ing the biographies of offenders and other individuals who transgress the norm of
established societies and by that come into contact with the criminal justice system.
And an increasing number of individuals are not only convicted for committing ter-
rorist acts but for belonging to terrorist groups or for supporting them. In many
European countries, their probational release depends on risk assessment and risk
management. This risk assessment is often accomplished by forensic psychiatrists
and psychologists.

22.2 Research

22.2.1 Why Is Research in Forensic Psychiatry

and Psychology Important?

Research predicates change for the better, so it can be a leverage for diminishing
stigma. And it contains costs and safeguards professional credibility and services.
By giving (young) professionals an opportunity to do research, it can support
recruitment and retention. A UK survey of the Royal College of Psychiatrists
revealed that of 2000 respondents, 60% is doing some research, most often next to
their primary role as a clinician. Indeed research is for most of them not their pri-
mary task. Above that, two-thirds of them would like to do more research and have
more time for that.
22  Recommendations to the Practice of National Teaching, Training and Research 337

22.2.2 What Would Help to Do Research?

An important aid would be protected time, so that clinicians do not have to care
about patients during the dedicated time for research. Research needs funding. For
forensic psychiatry and psychology, there should be a greater availability of fund-
ing, and professionals should know better how to apply for funding. There should
be a reduced bureaucracy of research, by means of making the ethics approval pro-
cesses simpler and by supporting research management. Professionals should
enhance their skills, for example, for statistics and for research designs. Above all,
there should be availability of academic support.

22.2.3 To What Extent Do Forensic Mental Health Services

Require Specific Research?

Antisocial behaviour by patients with mental disorders can only be adequately

researched within this group. Most research within patients with a cluster-B person-
ality disorder are those with a borderline personality disorder. A huge problem is
that standard randomized controlled trials (RCTs) of relevant treatments almost by
definition exclude antisocial and/or complex cases. We all know that forensic psy-
chiatric patients have a high degree of comorbidity with psychiatric disorders and/
or somatic diseases. Specific research is also needed because of unique characteris-
tics of some cases and ethical issues.

22.2.4 How Far Do We Have to Go?

With regard to treatments for patients with a personality disorder, McCarthy and
Duggan [2] highlighted the difficulty to measure usable outcomes or personality
changes in these patients. More recently, Duggan and Dennis [3] in a Cochrane
review stated that only 17 randomized controlled trials of psychological treatments
of sex offenders can be found. Contrary to that, 13,290 RCTs are registered on the
Cochrane Database for schizophrenia and that 21% investigated psychological
interventions. Even more, 16,483 trials are registered on the Cochrane Database for
depression, anxiety and neurosis. Although schizophrenia and depression are much
commoner conditions than sex offending, the contrast of the quality and quantity of
studies is stark.

22.2.5 Are ‘n-of-1’ Trials a Solution?

A n-of-1 trial tries to find an answer to the question ‘Is an intervention likely to
benefit or cause unwanted effects in an individual?’. This design is most suited to
interventions with the following features:
338 K. Goethals

1 . Interventions that act and/or cease to act quickly

2. Interventions with limited evidence
3. When complex patients differ from people included in conventional RCTs
4. When the prevalence of condition or condition combination is too low for con-
ventional trials

There can occur a randomization of intervention/non-intervention. Also there

can be blinding when appropriate. And finally, the Oxford Centre for Evidence-­
based Medicine (2011) classifies n-of-1 trials, when properly conducted as level 1
evidence.

22.2.6 Where Is the Funding? Where Is the Infrastructure?

Funding can be found by various sources, such as government research bodies,

health service, national research councils, specific funding streams and dedicated
charity, although we have to consider the fact that charity is hard to find for our
forensic psychiatric patients. With regard to infrastructure, we need training posts,
an obvious career pathway and a minimum sufficient network.

22.2.7 Looking for Other Partners

In the absence of immediate senior partners in forensic psychiatry and psychology,

we have to look for other partners inside and outside the field of forensic mental
health. Partners with relevant expertise outside the field are Clinical Trials Units
teams, neuroimaging experts, technology application experts, public health experts
and criminologists. Partners with relevant forensic mental health expertise in other
centres can be found on a national and international level. Multicentre research in
one’s own country and abroad is often needed due to small patient numbers that can
be found in one centre. Above that, international perspectives are vital in themselves
due to several reasons: first of all, they can put systematic reviews in perspective;
next, relevant conditions can contribute to a natural experiment; and finally, they
may allow collating n-of-1 trials.
Examples of international collaborations are the SWANZJACS study, the Ghent
group, the DUNDRUM and the STAIR. Forensic psychiatric services and interven-
tions under criminal and civil law were investigated in the Nine Nations
(SWANZJACS) study. Collaborating countries were Sweden, Wales, Australia,
New Zealand, Denmark, South Africa, Japan, Canada and Scotland. This study
highlighted similarities and differences in demographics of forensic psychiatric
patients internationally. Also they stressed the importance of similarities and differ-
ences in clinical and legal pathways. The Ghent group, as previously discussed in
several chapters of this study guide, tries to map similarities and differences in train-
ing, laws and legal processes, services, core concerns in treatment settings and
potential for research. The DUNDRUM QUARTET is a handbook that describes a
22  Recommendations to the Practice of National Teaching, Training and Research 339

suite of four structured professional judgement instruments. These structured pro-

fessional judgement instruments are intended to provide a validated and transparent
means of making decisions about admission, transfer and discharge in forensic
mental health/psychiatry services. The DUNDRUM-1 triage security items are
designed for the assessment of need for therapeutic security based on patient char-
acteristics. Patients can be rated according to their need for high, medium, low or no
therapeutic security. The DUNDRUM-2 triage urgency items are intended to aid the
prioritizing of patients on a waiting list for admission to a therapeutically secure
hospital. The DUNDRUM-3 programme completion items describe the extent to
which patients in a forensic secure hospital have engaged successfully in treatments
under five ‘pillars’ of care or domains relevant to reducing and managing risk of
harm. These five domains are physical health, mental health, drugs and alcohol
problems, problem behaviours and family, social and occupational function. The
DUNDRUM-4 recovery items are intended to provide a structured professional
judgement instrument for assessing the extent to which a person is ready to move to
a less secure placement, based on stability, insight, rapport and working alliance,
leave and dynamic risk. A programme evaluation examined a long-term cognitive
skills inpatient programme (STAIR) in reducing rehospitalization and rearrest rates
in mental illness [4].

22.2.8 Ten Steps Forward

In order to assure a future for research in forensic psychiatry and psychology, we

can formulate ten steps:

1. To articulate our platform

2. To build from basics
3. To abandon stereotypes
4. Radical thinking
5. The use of technology
6. Creativity with blockages
7. Doing more with less
8. Managing regulation
9. Product targeting
10. The clarity of message

1. To articulate our platform

Per life lost, we spend less on research into violence than on most other condi-
tions impacting on health. This situation must change. Therefore forensic men-
tal health research could make the difference.
2. To build from basics
We need to know more about life course of relevant symptoms of disorder in
the context of forensic psychiatry and psychology.
340 K. Goethals

3. To abandon stereotypes
We have to be aware of the fact that no condition is defined by untreatability.
Future research and clinical insights can make conditions more treatable at a
later stage.
4. Radical thinking
There are much better alternatives to incarceration. We need to explore further
biofeedback for behavioural disorders.
5. The use of technology
Technology use can help to evaluate patient engagement and to monitor patients
through apps.
6. Creativity with blockages
First of all, clinicians should engage in n-of-1 trials. Next, we should bring in
other research experts as mentioned above. And finally, we should facilitate
appropriate diversion of quality assurance funds.
7. Doing more with less
We should engage undergraduates and volunteers but never underplay skills.
And we should always know when to end a research line.
8. Managing regulation
We should promote the ethical problem of not advancing treatment and/or
change through research. We should also set up the structures for accurate, easy
responses and engage ‘experts by experience’ in the process.
9. Product targeting
We have to know who is interested in the mission of forensic psychiatry and
psychology. And we also explore the possibilities of crowd funding.
10. The clarity of message
Our message should be very clear: sound forensic mental health research can
save lives and reduce health and criminal justice costs.

Take-Home Messages
• The editing of this study guide was a very informative and rich journey.
I myself have learned a lot by the contributions of several colleagues and
friends. I hope that this study guide can find its way to many young enthu-
siastic colleagues from everywhere in Europe and in other continents.

Acknowledgement  The editor would like to thank Prof. Dr. P. Taylor, Cardiff University, UK, for
her thoughts about research in this chapter.

References
1. Collins H, Evans R. Rethinking expertise. Chicago: The University of Chicago Press; 2007.
2. McCarthy L, Duggan C. Engagement in a medium secure personality disorder service: a com-
parative study of psychological functioning and offending outcomes. Crim Behav Ment Health.
2010;20(2):112–28.
22  Recommendations to the Practice of National Teaching, Training and Research 341

3. Duggan C, Dennis J. The place of evidence in the treatment of sex offenders. Crim Behav Ment
Health. 2014;24:153–62.
4. Yates KF, Kunz M, Khan A, Volavka J, Rabinowitz S. Psychiatric patients with histories of
aggression and crime five years after discharge from a cognitive-behavioral program. J Forens
Psychiatry Psychol. 2010;21(2):167–88.
Index

A British Psychoanalytic Council (BPC), 174

Actuarial risk assessment, 250–251 Bruner, Jerome, 164
tools, 248
Admission Criteria for Secure Services
Schedule (ACSeSS), 218 C
Adversarial vs. inquisitorial systems Camberwell Assessment of Need (CAN), 221
definition, 4 CAN, see Camberwell Assessment of Need
history and roots of, 6–11 (CAN)
pre-trial investigation, 5 CCT, see Certificate of Completion of Training
Advisory Committee on Medical Training (CCT)
(ACMT), 279 Certificate of Completion of Training (CCT),
AEP, see Association of European 182
Psychiatrists (AEP) CESMA, see Council for European Specialists
American Academy of Psychiatry and the Law Medical Assessment (CESMA)
(AAPL), 199 Child protection, in statutory contexts, 226
Anglo-Saxon law, 265 Civil commitment legislation, 296–297
Anticolonialism, 313 Civil law
Antisocial behaviour, 335 confession as gold standard, 12
Antisocial personality disorder (ASPD), 174 criminal liability, psychiatric evidence and
Assertive community treatment (ACT), 293 exclusion from, 13–15
Association of European Psychiatrists definition, 3
(AEP), 282 history and roots of, 11–12
Austria sentencing, 15
forensic system in, 95 Clinical expert/witness training, 189–190
mapping offender pathways in, 93–94 Clinical Global Impression Scale, 221
Authorities, judicial, 247 Clinical practice, recommendations, 259–261
Autonomy of patient and consent to Clinical psychologists, 224, 225
treatment, 307–308 Clinical skills, 183
Clinical specialty, training in forensic
psychiatry as recognised, 201–202
B Clinicians
Balanced day and quality of life, 214–215 forensic mental health, training for,
Beccaria, 19 183–184
Behavioural therapy, cognitive, 225 mental health law for, 227
Belgium working, 181
deinstitutionalization, 294 Coercion in treatment, 308, 309
forensic psychiatry, 202–203 Cognitive behavioural programmes
legal system in, 158–159 RNR-based and, 241
mentally ill offenders in, 171–172 Cognitive behavioural therapy, 225

© Springer International Publishing AG, part of Springer Nature 2018 343

K. Goethals (ed.), Forensic Psychiatry and Psychology in Europe,
https://doi.org/10.1007/978-3-319-74664-7
344 Index

Cognitive distortion D
definition, 164, 165 Dangerousness Understanding Recovery and
psychological literature on, 165 Urgency Manual (DUNDRUM
Colonial oppressors, 313 toolkit), 219, 221, 336, 337
Committee for the Prevention of Torture DBT, see Dialectical behaviour therapy
(CPT), 72 (DBT)
Common law Death penalty, 188
definition, 3 Deinstitutionalization, 291
history of roots, 6–11 Austrian case, 292–293
Communication Belgium, 294
with colleagues, 134 forensic, 298
English dominance in scientific field, Spain, 294
135–136 Delphi style process, 215
with patients, challenges in, 130–131 Denmark
skills, 228 (see also Language forensic psychiatry, 203
barriers) multi-agency working, 147
Community care, 293–294 Dialectical behaviour therapy (DBT), 242
Community Forensic Teams (CFT), 104 Discharge, forensic hospital to conditional,
Community mental health teams 213–214
(CMHTs), 171 Domestic Violence, Crime and Victims Act
Competence, legal vs. medical, 37–39 2004, 154
Completed clinical training (CCT), 200 Draft Recommendation Rec, 306, 309
Compulsion, 309 DUNDRUM toolkit, see Dangerousness
Confidentiality, 304–306 Understanding Recovery and
Continued professional development Urgency Manual (DUNDRUM
(CPD), 192 toolkit)
Continuity of care, 121–122 Dynamic risk factors, 270, 271
Convention on the Rights of Persons with
Disabilities, 27
COST Action, 268, 271 E
aims of, 287 EACCME, see European Accreditation
on forensic psychiatry, 287 Council for Continuous Medical
COST project, 268–269 Education® (EACCME)
Council for European Specialists Medical EACQMSP, see European Accreditation
Assessment (CESMA), 279 Council for Quality Management in
Counselling, 225 Specialist Practice (EACQMSP)
Court diversion systems, 211 EAPL, see European Association of
CPD, see Continued professional development Psychology and Law (EAPL)
(CPD) ECAMSQ, see European Council for
Crime Accreditation of Medical
antecedents of, 166 Specialist Qualification®
meaningful and meaningless act, (ECAMSQ)
165–167 ECHR, see European Convention for the
Criminal Justice System Protection of Human Rights and
language barriers in, 133 Fundamental Freedoms (ECHR)
United Kingdom (UK), 167 ECrtHR, see European Court on Human
Criminal procedure investigation Rights (ECrtHR)
convergence of systems, 6 EEC, see European Economic Community
law and, 35–36 (EEC)
pre-trial investigation, 4–5 EFPT, see European Federation of Psychiatric
sentencing, 15 Trainees (EFPT)
Cyclical complexity model, 319–320 Electronic learning (e-learning) modules, 192
Index 345

England European Accreditation Council for

forensic mental health sentencing disposals Continuous Medical Education®
within, 103 (EACCME), 278, 279
funding, forensic psychiatric facilities, European Accreditation Council for Quality
119–120 Management in Specialist Practice
mapping offender pathways, 101–105 (EACQMSP), 279
mental health factors during legal European Association of Psychology and Law
proceedings in, 102 (EAPL), 185
English dominance in scientific field, 135–136 European Convention for the Protection of
EPA, see European Psychiatric Association Human Rights and Fundamental
(EPA) Freedoms (ECHR), 47, 71–72
Epidemiological study in Europe, 266–268 European Convention on Human
Equivalence principle, 306–307 Rights, 227
Ethical issues, forensic health-care systems European Convention on Human Rights and
and professional view, 122–123 Biomedicine, 307
and public opinion, 122 European Council for Accreditation of
Ethics Medical Specialist Qualification®
in forensic mental health practice, (ECAMSQ), 278–279
226–227 European Court on Human Rights (ECrtHR),
professionalism and, 188–189 47, 72
EUFAMI, see European Federation of European Economic Community (EEC), 277
Associations of Families of People European educational initiatives, 184–186
with Mental Illness (EUFAMI) European Federation of Associations of
EUMS, see European Union of Medical Families of People with Mental
Specialists (EUMS) Illness (EUFAMI), 285–286
Europe European Federation of Psychiatric Trainees
legal approaches of mentally disordered (EFPT), 185–186, 280, 284–285
offenders working groups, 285
aim, 32–33 European Forensic Psychiatric Institutions,
approach, 32–33 271–272
church influences, 34–35 European Framework for Competencies in
context within criminal law and Psychiatry (EFCP), 280
procedure, 35–36 European Psychiatric Association (EPA), 186,
context within sentencing law and 198, 281, 282
mental health law, 36–37 committees and sections, 283–284
general vs. specific relation, disorder scientific events, 283
and offence, 39–41 Section for Forensic Psychiatry, 284
gradual vs. dichotomous, 41–42 European Standards on Confidentiality and
Greek roots, 33–34 Privacy in Healthcare, 304
Hebrew roots, 33–34 European Training Requirements for the
historical roots, 33–35 Specialty of Psychiatry, 280
legal vs. medical competence, 37–39 European Union of Medical Specialists
moral tradition, 31–32 (EUMS), 278–279
Roman roots, 33–34
scope, 32–33
on national forensic psychiatry F
CPT standards, 81–85 Finland
execution of sanctions, 78–81 forensic system in, 96
fair trial, trial rights, 76–77 mapping offender pathways, 94–98
fitness to stand trial, 75–76 Flexible assertive community treatment, 293
mechanisms, 71 Forensic bed capacities, 116–117
mentally disordered suspects, 73–75 Forensic community rehabilitation, 224
346 Index

Forensic deinstitutionalization, 298 forensic hospital to conditional discharge,

Forensic health-care systems 213–214
advantages, 120–121 governance structure, 212–213
continuity of care, 121–122 prison in-reach and court diversion, 211
disadvantages, 120–121 prison to community, 213
ethical issues require specific research, 335
and professional view, 122–123 and specialist skills, 217–218
and public opinion, 122 risk assessment, 220–221
funding risk-need-responsivity and skills, 218
in England and Wales, 119–120 treatment and recovery measures, 221
and Ministry of Justice, 118–119 triage and urgency assessments for
in Netherlands, 119 admission, 218–220
reimbursement, 119 stratified therapeutic security, 211–212
in Spain, 120 Forensic patients, 226
by public health and by justice, 111–112 assessment, 269
facilities and services, 112–113 mental disorders in, 269–270
forensic bed capacities, 116–117 prevalence of mental disorders in,
general psychiatric facilities, 113–114 269–270
in private sector, 115–116 Forensic practitioners
lifelong forensic placement, 118 challenges, 181
offenders with specific mental specific situations of, 188–189
disorders, 114–115 Forensic Psychiatric Centres (FPCs), 100
outpatient forensic care, 114 Forensic Psychiatric Clinics (FPKs), 100
preventive detention, 117 Forensic psychiatric ethics, 303
prison services, 115 Forensic psychiatric trainees, 192
specialist forensic facilities, 113 Forensic psychiatrist
recommendations, 124 ethical issues, 306
supervision and regulation, 118 role of, 107
Forensic hospital to conditional discharge, Forensic psychiatry
213–214 Belgium, 202–203
Forensic mental health components of training, 183
care development, 210 COST Action on, 287
clinicians training for, 183–184 definitions, 198–199
core online modules, 184 Denmark, 203
ethics in, practice, 226–227 Ghent group definition, 153
forensic psychotherapy in (see (Forensic higher training in, 202–203
psychotherapy)) knowledge and skills in, 199–200
institutions, forensic psychotherapy, Netherlands, 203
167–169 practising in professions of, 182
legislation, 214 research in, 334–335
mental health professionals practicing in, role for stakeholders in, 287–288
222 Spain, 203
nurses, 223–224 Forensic psychologists, 225
psychiatrists, 222–223 Forensic psychology
promotion of career in, 193 components of training, 183
to reduce mental health stigma, 193 practising in professions of, 182–183
service organisation for, 209 research in, 334–335
Forensic mental health care, 310 Forensic psychometrics, language barriers,
Forensic mental health professionals in 131–133
Europe, 153–155 Forensic psychotherapy
Forensic mental health services crime, meaningful and meaningless act,
active management of length of stay, 212 165–167
Index 347

in forensic mental health institutions, Homicide rates, 292

167–169 HoNOS, see Health of the Nation Outcome
in United Kingdom, 169–171 Scales (HoNOS)
meaning-making in, 165 Human rights
mentally ill offenders in Belgium, 171–172 mentally ill offenders and, 25–28
multi-professional expertise in, 170 universal declaration of, 26
practice, impact on
through communities of practice, 175
through research and scholarship, I
172–174 Individual pathway, general determinants to,
through training, 174–175 317–318
role of speech in, 163–165 Inquisitorial system
Forensic setting, 223 definition, 4
psychologists in, 225 history and roots of, 11–12
Forensic treatment guidelines, 238–239 Insanity
Freud, Sigmund, 166 definition, 37–39
Funding, forensic psychiatric facilities McNaughton rules definition, 20
in England and Wales, 119–120 test of, 39–41
and Ministry of Justice, 118–119 Institutional neurosis, 215
in Netherlands, 119 International Association of Forensic
reimbursement, 119 Psychotherapy (IAFP), 175
in Spain, 120 International training, 204–205
Interpersonal Dynamics (ID) Consultation
model, 173
G IRA, 313
Gaining Experience Programme, 186
GARF, see Global Assessment of Relational
Functioning (GARF) J
Germany, round table in, 143–144 Judicial authorities, 247
Ghent Group, 186, 198, 199, 286–287 Justice and psychiatry, 303–304
forensic psychiatry definition, 153
multi-agency working, 148
GLM, see Good lives model (GLM) K
Global Assessment of Function, 220, 221 Knowledge in forensic psychiatry, 199–200
Global Assessment of Relational Functioning
(GARF), 221
Good lives model (GLM), 239, 241 L
Lacanian theory, 172
Language barriers
H challenging, 129
Hare’s Psychopathy Checklist-Revised English dominance in scientific field,
(PCL-R) 2003, 192 135–136
HCR-20, see Historical Clinical Risk in criminal justice system, 133
Management-20 (HCR-20) in dissemination of knowledge,
HCR-20 Version 3 (HCR-20V3), 252, 253 136–137
Health-care confidentiality, 304 in forensic psychometrics, 131–133
Health-care providers, 306 professional, 134
Health of the Nation Outcome Scales Spanish forensic psychiatrist in
(HoNOS), 221 Wales, 138
HoNOS-SECURE, 221 translations available, forensic tools, 132
Historical Clinical Risk Management-20 Learning, problem-based, 191
(HCR-20), 221, 252, 254, 271 Lectures, advantages and disadvantages, 190
348 Index

Legal approaches, mentally disordered themes and differences, offender-patient

offenders pathways
aim, 32–33 availability of specialist secure
approach, 32–33 hospitals, 105–106
church influences, 34–35 enforced treatment, 106
context within criminal law and procedure, nature of aftercare, 107
35–36 role of forensic psychiatrist, 107
context within sentencing law and mental timing of allowance for, 105
health law, 36–37 Marle, Van, 168
general vs. specific relation, disorder and Matrix Consensus Cognitive Battery, 225
offence, 39–41 McNaughton Rules, 20
gradual vs. dichotomous, 41–42 MDOs, see Mentally disordered offenders
Greek roots, 33–34 (MDOs)
Hebrew roots, 33–34 MDT, see Multidisciplinary team (MDT)
historical roots, 33–35 Medical practitioners, 198
legal vs. medical competence, 37–39 Mental disorders, 335
moral tradition, 31–32 in forensic patients, 269–270
Roman roots, 33–34 Mental health-care professionals, 303, 307
scope, 32–33 Mental health law
Legal issues, 238 for clinicians, 227
Legal systems interface between, 187
adjudication, 60–64 Mental health legislation, 187
criminal responsibility and mental Mental health practice
disorders, 54–60 nurses, 223–224
detention, 60–64 occupational therapists, 225–226
involuntary treatment and coercion, 64–65 psychiatrists, 222–223
rights-based approaches, 47–52 psychologists, 224–225
sociopolitical climate and changing social therapists, 224
practices, 52–54 social workers, 226
Legislation Mental health professionals, 222
civil commitment, 296–297 Mental health services development, 210
and practice, differences and common Mental health stigma, role and responsibility
ground in, 197–198 of teachers in, 193
Lifelong forensic placement, 118 Mentalisation-based treatment (MBT), 174
Linear models Mentally disordered offenders (MDOs),
NYPD (New York Police Department) 238
four-stage model, 318–319 Mentally disordered persons, 213, 226
staircase model of Moghaddan, 318 (see Mentor, 184
also Nonlinear models) Metacognitive therapies, 225
Lombrosso, 19 Militant extremism, 325–326
Moghaddan, staircase model of, 318
Multi-Agency Public Protection Arrangements
M (MAPPA), 104, 154
Madrid Declaration on Ethical Standards for Multi-Agency Sex Offender Risk Assessment
Psychiatric Practice 1977, 188 and Management (MASRAM)
Mapping strategy, 145
definition, 93 Multi-agency working
offender pathways definition, 142
in Austria, 93–94 Denmark, 147
in England and Wales, 101–105 Ghent Group, 148
in Finland, 94–98 historical perspective, 142–143
in Netherlands, 98–101 improvements in, 148–149
process, 93 pros and cons of, 141
Index 349

protection arrangements in United O

Kingdom, 144–146 Occupational therapists, 225–226
safety houses in Netherlands, 146–147 Offender pathways
Spain, 148 in Austria, 93–94
Multidisciplinary team (MDT), 220 beyond fixed placements, 91–92
Multidisciplinary training, 204 in England and Wales, 101–105
in Finland, 94–98
in Netherlands, 98–101
N Offender personality disorder (OPD) pathway,
National Education for Scotland (NES), 184 171
National Health Service (NHS), 167 Offenders with specific mental disorders,
National laws 114–115
cultural attitudes, 24 Operationalized Psychodynamic Diagnostics
European and International policy, 24–25 (OPD) Task Force, 173
health-care and welfare systems, 23 Oppressors, colonial, 313
illegality standards, 20 Outpatient forensic care, 114
legal systems
common law, 22–23
Roman law, 22 P
mentally ill offenders and human rights, Patient-centred factors, 219
25–28 Patient’s autonomy, 307–308
moral standards, 20 Personal dignity, 217
recommendations, 28–30 Personality disorder, 210
National Offender Management Service Physicians, 306
(NOMS), 171 Podcasts, 191–192
Need principle, 239 Population shifts, 294–295
NES, see National Education for Scotland Postgraduate Medical Education and Training
(NES) Board (PMETB), 202
Netherlands Pre-trial investigation, 5
forensic psychiatry, 203 Preventive detention, 117
forensic psychotherapy in, 167 Prisoners, right to treatment for, 306–307
forensic system, 99 Prison services, 115
funding, forensic psychiatric facilities, 119 Privacy Governance Guide to Safety Houses,
mapping offender pathways, 98–101 147
multi-agency working, 146–147 Private sector, 115–116
statute, criminal responsibility, 21 Probation workers, 247
Netherlands Institute of Forensic Psychiatry Problem-based learning, advantages and
and Psychology (NIFP), 98 disadvantages, 191
Neurocognitive ability, 213–214 Procedural justice, 169
‘New to Forensics’ teaching programme, 184 Professionalism and ethics, 188–189
New York Police Department (NYPD) Professional language-based barriers, 134
four-stage model, 318–319 communication with colleagues, 134
NGRI, see Not guilty for reason of insanity professional’s mobility, 134–135
(NGRI) Programmes, in practice, 240–242
‘n-of-1’ trials, 335–336 Protective factors, 254–256, 258–259
Non-case-based reflective practice groups, 189 Provision of care, 237
Nonlinear models, cyclical complexity, Psychiatric beds, critical number of,
319–320 295–296
Norman system, 8 Psychiatric expert, 303
Not guilty for reason of insanity (NGRI), 292, Psychiatric practice, risk assessment and
295 management in, 187
Nurses in mental health practice, 223–224 Psychiatric trainees, 182
350 Index

Psychiatrist Roman-French law, 265

dual responsibilities of, 188 Royal College of Psychiatrists, 182, 192
in mental health practice, 222–223
role, 185–186
Psychodynamic therapy, 241 S
Psychologically informed planned Safety houses in Netherlands, 146–147
environments (PIPEs), 171 Scepticism, 227
Psychologists Schema-oriented psychotherapy (SOPT), 242
counselling, 225 School of Forensic Mental Health (SoFMH),
in forensic setting, 225 184
in mental health practice, 224–225 Section for Forensic Psychiatry, 284
roles, 155–157 Section of Psychiatry, 280–282
Security-centred instruments, 219
Security Needs Assessment Profile (SNAP),
Q 219, 221
Quality of life (QOL), 214–215 Sentencing, 15
in European forensic psychiatric Sentencing law and mental health law, 36–37
institutions, 271–272 Service organisation for forensic mental
programmes, 217 health, 209
Sex offender, 269
interventions, 241
R Sex offender treatment programme (SOTP),
Radicalisation 240, 241
determinants of, 314, 315 Skills
ideologies, 317 communication, 228
individual factors, 316 in forensic psychiatry, 199–200
social identity, 316–317 SNAP, see Security Needs Assessment Profile
foundations of, 315 (SNAP)
threats, 315, 316 Social and Occupational Functional
Randomized controlled trials Assessment Scale (SOFAS), 221
(RCTs), 335 Social contact hypothesis, 315
Reasoning and Rehabilitation (R&R) Social identity, 316–317
programme, 240 Social therapists in mental health practice, 224
Relational security, 211 Social workers, 213
Reports, writing, 228 in mental health practice, 226
Responsivity principle, 239 SOFAS, see Social and Occupational
Risk assessment, 220–221 Functional Assessment Scale
actuarial, 250–251 (SOFAS)
approaches to, 249–250 SoFMH, see School of Forensic Mental Health
case study, 256–259 (SoFMH)
instruments, 220–221 SOPT, see Schema-oriented psychotherapy
in psychiatric practice, 187 (SOPT)
structured professional judgement SOTP, see Sex offender treatment programme
approach, 251–252 (SOTP)
tools, 248, 250 Spain, 138
violence, 247–249, 270–271 deinstitutionalization, 294
Risk factors, 258 forensic psychiatry, 203
Risk management in psychiatric funding, forensic psychiatric facilities, 120
practice, 187 multi-agency working, 148
Risk–need–responsivity (RNR) Specialist forensic facilities, 113
model, 238, 239 Specialist forensic mental health care
oriented programmes, 240 development, 210
Risk-need-responsivity and skills, 218 Speech in forensic psychotherapy, 163–165
Risk principle, 239 SPJ, see Structured professional judgement
RNR, see Risk–need–responsivity (RNR) (SPJ)
Index 351

STAIR, 336, 337 Transference-focused psychotherapy (TFP),

Staircase model of Moghaddan, 318 241–242
Stakeholders role in forensic psychiatry, Trans-institutionalisation, 210, 291
287–288 elements
Structured Assessment of Protective Factors civil commitment legislation, 296–297
(SAPROF) community care, 293–294
item ratings, 255 critical number of psychiatric beds,
SAPROF-YV, 256 295–296
for violence risk, 255 education and training, 297–298
Structured professional judgement (SPJ) funding requirements, 297
approach, 249–252 population shifts, 294–295
assessment tools, 252–254 zeitgeist, 296
risk assessment tools, 248, 250 Treatment on behalf of the State (TBS), 98
SWANZJACS study, 336

U
T Union Européenne des Médecins Spécialistes
TBS, see Ter beschikking stelling (TBS) (UEMS), 278–282
Teachers in forensic mental health, 193 Uniprofessional training, 204
Teaching United Kingdom (UK)
methods forensic psychotherapy in, 167
lectures, 190 multi-agency working, protection
problem-based learning, 191 arrangements in, 144–146
role play, 192 United Nations Convention on the Rights of
utilisation of technology, 191–192 Persons with Disabilities, 227
and training, 333 United Nations Standard Minimum Rules for
capita selecta, 334 the Treatment of Prisoners, 28
legal frameworks, 331–332
service provision and frameworks, 332
specific skills, 332 V
Ter beschikking stelling (TBS), 203 VERA, see Violent Extremism Risk
Terrorism, 313, 314 Assessment (VERA)
and forensic psychiatry, 323–325 Violence
affiliations, 326 management, 268
caveat, 326–327 reduction programmes, 215
grievances, 326 risk assessment, 247–249, 270–271
ideology, 325–326 Violent Extremism Risk Assessment (VERA),
moral emotions, 326 324
TFP, see Transference-focused psychotherapy Violent extremist behaviours, 321
(TFP) Violent offender treatment programmes, 241
The Profile of a Psychiatrist, 280
Therapeutic day and treatment programmes,
214 W
balanced day and quality of life, 214–215 Wechsler Adult Intelligence Scales, 225
quality of life programmes, 217 Welfare systems, health-care and, 23
treatment programmes, 215–216 Witnesses, 157–158
Therapeutic security, 221 World Psychiatric Association (WPA), 188
forensic mental health services, 211–212 WPA, see World Psychiatric Association
levels of, 219 (WPA)
Torture, 188 Writing reports, 228
Traditional service models, 209
Training, special, 200–201
in forensic psychiatry, 202–203 Z
as recognised clinical specialty, 201–202 Zeitgeist, 296